Wednesday, January 31, 2018

Neither Doctor Or Lawyer

The Louisiana Supreme Court permanently disbarred an attorney

Respondent graduated from medical school in 1977. After completing his internship and residency in obstetrics and gynecology, he obtained board certification in general obstetrics and gynecology as well as maternal-fetal medicine (a sub-specialty of obstetrics which deals with complications of high-risk pregnancies).

In 2001, respondent returned to school, graduating from law school in December 2004. He passed the July 2005 Louisiana bar examination. However, the Committee on Bar Admissions opposed his admission to the bar, citing administrative proceedings which were then pending against him before the Louisiana State Board of Medical Examiners ("Medical Board"). These proceedings involved allegations that respondent had violated the Louisiana Medical Malpractice Act by, among other things, engaging in improper consultation practices. After respondent and the Medical Board entered into a consent judgment resolving the administrative complaint in its entirety, the Committee on Bar Admissions withdrew its objection to respondent’s admission. On December 15, 2006, this court rendered a per curiam opinion granting respondent’s application for admission to the bar. In re: Pastorek, 05-2336 (La. 12/15/06), 944 So. 2d 564. Respondent took the oath of admission on January 9, 2007.

 The problem related to his medical practice

From 2004 to 2007, respondent worked as a prescribing physician for Global Pain Management, LLC (“Global”), a pain clinic with offices located in the greater New Orleans area. Global also operated a clinic in Pensacola, Florida. While employed at Global, respondent’s prescription practices came under investigation by federal authorities. The government characterized the Global clinics as “pill mills” and claimed that respondent was purporting to provide “pain management” treatment for chronic pain patients, when in truth and in fact he was unlawfully distributing Schedule II, III, and IV controlled substances through prescription practices done outside the usual course of medical practice and for other than legitimate medical purposes.

In September 2010, respondent was indicted by a federal grand jury in the Northern District of Florida, Pensacola Division, on charges that he and his co defendants conspired to unlawfully distribute prescription painkillers. According to the indictment, respondent wrote prescriptions to patients for drugs including oxycodone, methadone, Xanax, and hydrocodone in exchange for cash fees for office visits. Over a four-year period between 2004 and 2008, respondent and another physician saw 40-80 patients each day; in total, Global collected over $8.5 million in cash proceeds from patients during that time period. The indictment further alleged that one or more deaths had resulted from these prescription practices, specifically the use of methadone; however, the government ultimately could not establish this allegation.

A six-week jury trial was conducted beginning in October 2011. During the trial, the government’s expert in the field of pain management, addiction medicine, and the prescription of controlled substances testified that after reviewing 96 patient files that were seized by the government, he concluded that Global’s prescription practices were dangerous, not consistent with the usual course of medical practice, and not for legitimate medical purposes. On the other hand, respondent’s expert in pain management reviewed the same 96 patient files and concluded that the pain medications were prescribed to patients for legitimate medical reasons and were done so within the accepted standard of care of the practice of pain medicine.

At the conclusion of the trial, respondent was found guilty of conspiracy to dispense Schedule IV controlled substances.  Respondent filed a motion for new trial, which was denied by the district court...

On September 1, 2015, the United States Eleventh Circuit Court of Appeals affirmed respondent’s conviction. United States v. Pastorek, 625 Fed. Appx. 464 (11th Cir. 2015) (not designated for publication). On April 18, 2016, the United States Supreme Court denied respondent’s petition for writ of certiorari; his conviction became final upon the Supreme Court’s denial of rehearing on June 13, 2016.

 The Medical Board suspended his license for three years.

The court on sanction

 we find permanent disbarment is the appropriate sanction in this case. Accordingly, we will accept the disciplinary board’s recommendation and permanently disbar respondent.

Two dissents favor regular disbarment. (Mike Frisch)

January 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Delaware Fantasy

The Delaware Chancery Court granted summary judgment in a long-simmering legal dispute

As we approach the eleven-year anniversary of the initiation of this action, Reid v. Siniscalchi has readily secured its place as a candidate for the Jarndyce award for interminable legal proceedings.  Given how long the Court and the parties have been at this, it is remarkable, to say the least, that we would just now be addressing a motion for summary judgment on the ground that the Court lacks personal jurisdiction over necessary party defendants. And yet, after more than eight years of jurisdictional and merits discovery, it is now abundantly clear that the theory of personal jurisdiction asserted in Plaintiff’s various pleadings, and pressed successfully by Plaintiff in response to an early-stage Rule 12(b)(2) motion to dismiss, is, in fact, a myth. That Plaintiff has managed to trade this myth as the truth for more than a decade is troubling.

Plaintiff’s claims arise from a single memorandum of agreement between U.S. Russian Telecommunications L.L.C. (“USRT”) and Finmeccanica, SpA (“FIN”), the provisions of which select English law and English arbitration for dispute resolution. Apparently perceiving that the parties’ choice of law and choice of forum/arbitration were no longer satisfactory, Plaintiff devised a fantasy Delaware based conspiracy among the Defendants and pled those facts in his verified complaint as a basis to argue that this Court could exercise personal jurisdiction over the non-resident defendants. With implicit assurances that the evidence would bear out his claim, he then convinced the Court, in his response to Defendants’ Rule 12(b)(2) motion, to follow him down a rabbit hole to a conspiracy “wonderland” where the Court and the parties have resided ever since. It is now time to return to reality.

(Mike Frisch) 

 

January 31, 2018 | Permalink | Comments (0)

If I Could Turn Back Time

The Oklahoma Supreme Court has imposed a 60-day suspension for date-stamp misconduct

The General Counsel of the Oklahoma Bar Association asks this Court to discipline attorney Meagan Elaine Brooking (Respondent), pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, Ch. 1, App. 1-A. The General Counsel asserts that discipline is warranted after finding merit to the grievance filed by the Associate District Judge in Pontotoc County. This grievance reported that Respondent turned back the date on the Court Clerk's filing stamp to show a pleading was filed on April 15, 2017, when Respondent had, in fact, submitted the pleading for filing on April 19, 2017.¶2 In response, Respondent admitted that she turned back the filing stamp on this occasion and also assisted the General Counsel in identifying three other instances in which she may have turned back the Court Clerk's filing stamp. Following a hearing, a three member trial panel of the Professional Responsibility Tribunal determined that Respondent's admitted action on April 19,2017, constituted misconduct. The trial panel further concluded, however, that misconduct had not been established by clear and convincing evidence in the other three identified instances.

 The General Counsel and counsel for Respondent proposed that Respondent receive a public reprimand. The trial panel rejected this proposal, observing "the intentional back-dating of official court documents [is] a serious offense deserving more than a public reprimand." The trial panel unanimously recommended that Respondent be suspended for up to six months, "[as] a deterrent to Respondent and to other members of the Bar who might consider such a course of action [to avoid late filing]."

The court's review

 Upon de novo review, we conclude that Respondent engaged in misconduct on April 19, 2017, by turning back the date on the Court Clerk's filing stamp to show a pleading submitted that day, was filed on April, 15, 2017. Respondent concedes that this action violated Rule 1.1 (Competence), Rule 1.3 (Diligence), and 3.3 (Candor toward the Tribunal) of the Rules of Professional Conduct, 5 O.S.2011, Ch. 1, App. 3-A.

Additionally, Respondent acted intentionally and with the purpose to deceive the court and the other party when she turned back the court clerk's filing stamp. Such conduct is the type of dishonesty, deceit and misrepresentation while engaged in the practice of law that is forbidden by Rule 8.44 of the Rules of Professional Conduct. Though she maintains she had no bad motive or evil intent, her wilful conduct is sufficient to support a violation of Rule 8.4.

We further find, as did the trial panel, that these violations constitute a "serious offense." In our opinion, suspension from the practice of law would provide appropriate discipline to deter such misconduct by Respondent and other members of the bar.

In determining the period of suspension, we have taken into account the following mitigating circumstances: (1) Respondent's cooperation with the General Counsel's investigation, (2) the absence of prior disciplinary action, (3) a good reputation in Pontotoc County as a skillful and honest attorney, (4) organizational changes in her law office to prevent missing future filing deadlines, (5) the absence of advantage to Respondent's clients by the turning back of the Court Clerk's filing stamp, and (6) the economic hardship suspension poses to Respondent as a single mother. Based on these mitigating factors, we impose a suspension for sixty days from the date of this opinion. Respondent is also ordered to pay the costs of this proceeding within sixty days of the date of this opinion.

(Mike Frisch)

January 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Buyer's Remorse In Minnesota Bar Discipline

A prosecutor who admitted mid-disciplinary hearing that he had made knowing false statements in discovery disclosures and responses that "unduly delayed the criminal proceedings in [two] cases and resulted in the exclusion of testimony from a confidential informant in one case" was suspended for at least 60 days by the Minnesota Supreme Court.

The respondent had orally agreed to stipulated discipline on the second day of the bar hearing and then refused to sign the stipulation.

The court found the stipulation enforceable and sanctioned him on the Director's motion to enforce. (Mike Frisch)

January 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 30, 2018

Lawyer As Witness Disqualification Did Not Deny Fair Trial

The Ohio Supreme Court decided a case summarized by Dan Trevas

The Ohio Supreme Court today decided two cases that were orally argued at an off-site court session last October at Marietta High School.

Justice R. Patrick DeWine wrote both majority opinions. The Court affirmed the conviction of Deandre Gordon in one of the cases, holding that the trial court did not commit “plain error” when it joined two indictments against Gordon for trial. Gordon had argued that the joinder had prevented him from retaining his counsel  of choice. In the other case, the Court denied a writ of mandamus to landowners disputing an Ohio Department of Natural Resources’ (ODNR) decision. (See Court to Mark 30th Anniversary of Off-Site Court Program in Marietta).

Gang Member Charged with Crimes
Gordon was a member of the Loyal Always gang. He robbed Tevaughn Darling of about $7,300, shot him in the foot, and stole his rental car. Darling and Gordon had been friends, and Darling was afraid of reporting Gordon to police because of his gang membership. Darling eventually reconsidered and provided a video-recorded statement to a detective.

Gordon was indicted for the robbery and other related charges, and met with his attorney, Aaron T. Baker, to discuss his case. The Cuyahoga County Prosecutor’s Office gave Baker a copy of Darling’s videotaped statement, which Baker showed only to Gordon. The next day, an edited copy of Darling’s statement appeared on Instagram in a way that made it seem Darling was voluntarily providing information about the Loyal Always gang.

Darling received multiple threats based on the video and alerted the prosecutor’s office. This led the state to indict Gordon for “intimidation of a crime victim,” and Gordon asked Baker to represent him on that charge too.

Court Joins Cases, Disqualifies Attorney 
The prosecutor’s office requested that the trial court join the two cases, arguing the crimes were connected or part of a continuing scheme, and that Baker be disqualified from representing Gordon because he was a “material witness” in the intimidation case. Baker, on Gordon’s behalf, did not object to the cases being joined, and requested that he be allowed to continue representing Gordon. He stated that he was not a necessary witness in the case because he was willing to stipulate that he showed Gordon the video.

The trial judge granted both of the prosecutor’s requests. Gordon, now represented by another attorney, was convicted of the robbery-related charges, but acquitted of the intimidation charge.

Gordon appealed his conviction to the Eighth District Court of Appeals, arguing that his constitutional right to his choice of attorney was violated by the consolidation of the charges. The Eighth District reversed the trial court’s decision. The court concluded that Baker was not a material witness in the robbery case, and found that the joining of the cases—which resulted in the denial of Gordon’s request to have Baker represent him on the robbery charge--violated Gordon’s right to counsel under the Sixth Amendment to the U.S. Constitution. The prosecutor’s office appealed the decision to the Supreme Court.

Verdict Not Impacted by Barring Attorney
Justice DeWine explained that because Gordon did not object to joining the cases, the Supreme Court must find the trial court committed “plain error” to overturn his conviction. To reverse the decision, Gordon had to prove there was an obvious defect in the trial proceedings and that the defect affected the trial’s outcome.

The Supreme Court ruled that the lower court failed to acknowledge that Gordon’s alleged attempt to intimidate Darling not only could be used for the intimidation charge, but also could be admitted in the robbery case. That is because an attempt to intimidate a witness from testifying can be used as evidence to prove a defendant’s “consciousness of guilt” of the underlying crime. Baker would be the key witness to testify that only Gordon had been shown the Darling video before it showed up on Instagram, and that fact could be used to show Gordon’s “consciousness of guilt” of the robbery charges. Because Baker could be a material witness in both cases, the trial court did not commit plain error and Gordon’s rights were not violated, the Court concluded.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and Patrick F. Fischer joined the opinion.

Justice William M. O’Neill, who participated in this case before his Jan. 26 resignation, dissented without a written opinion.

2016-1462State v. GordonSlip Opinion No. 2018-Ohio-259.

Video camera icon View oral argument video of this case.

(Mike Frisch)

January 30, 2018 | Permalink | Comments (0)

Affirmative Defense?

An answer to a recently- filed complaint by the Illinois Administrator sets out an affirmative defense to allegations of misconduct toward two opposing counsel in that

in representing clients in employment discrimination matters, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including addressing opposing counsel Courtney Lindbert as "Cunt-ney" following a court proceeding during discussions related to the pending Wyman litigation, and sending Lindbert an email related to the parties' ongoing litigation addressing Lindbert as "Cuntney Lindbitch," in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

conduct that is prejudicial to the administration of justice by conduct including addressing opposing counsel Courtey Lindbert as "Cunt-ney" following a court proceeding during discussions related to the pending Wyman litigation, and sending Lindbert a harassing email to Lindbert's law firm email address related to the parties' ongoing litigation addressing Lindbert as "Cuntney Lindbitch," in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

And

in representing a client in a domestic relations matter, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including calling opposing counsel Antoinette Granholm a "bitch" during discussions related to discovery in the pending Klocek litigation following a court proceeding, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

conduct that is prejudicial to the administration of justice by conduct including calling opposing counsel Antoinette Granholm a "bitch" during discussions related to discovery in the pending Klocek litigation following a court proceeding, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

In "affirmative defense"

On September 15, 2016, following a hearing in the Wyman matter in the U.S. District Court (NDIL) in Judge Kennelly's courtroom, Complainant Courtney Lindbert engaged in conduct calculated to embarrass and burden Respondent in the course of pending litigation, to wit, Lindbert harassed and sought to intimidate Respondent, unprovoked, by shouting to Respondent in the hallway outside Judge Kennelly's courtroom: "I'm going to take your fucking license, you're a piece of shit."

On December 2, 2016, Courtney Lindbert falsely accused the Respondent of filing a pleading late and without leave of court, when Respondent had filed the pleading on time, in the Knapp case. See Dkt. 130 and 132, Knapp v. Evgeros, No. 15-CV-754 (NDIL).

Lindbert perjured herself in written statements to the NDIL Executive Committee and the ARDC regarding this matter.

At the time of the alleged events in Count II, Complainant Antoinette Granholm engaged in insulting bad faith negotiations in the Klocek divorce matter with Respondent, intentionally provoking Respondent.

The accused attorney filed the answer pro se. (Mike Frisch)

January 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Three-Hole Punch (Rosemary) And Twine

The Maine Supreme Judicial Court ordered a 12-month suspension of an attorney

The basis for the grievance complaint against Burbank, leading to the filing of the within Information, is the matter of Lincoln v. Burbank, 2016 ME 138, 147 A.3d 1165, decided by the Supreme Judicial Court, sitting as the Law Court, on August 30, 2016. This court takes judicial notice of and adopts the findings and conclusions set out in that decision.

The case of Lincoln v. Burbank involved an appeal of a Northport property dispute litigated in the Superior Court in Penobscot County, in which neighbors of property owned by the Burbank family filed claims against the Burbanks seeking a prescriptive easement over the Burbank property and a declaratory judgement, for conversion, and for punitive damages against Burbank himself. Id. ¶ 18. Burbank represented himself; his father, Harold Burbank I; his brother, David Burbank; and his sister, Lori Darnell. Id. ¶ 2. After a jury-waived trial, the Superior Court found in favor of the neighbors and against Burbank's position. Id. ¶ 21. In addition, the Superior Court found in favor of other members of the Burbank family, who were co-owners of the Burbank property, on their cross-claim for partition by sale of the Burbank family property. Id. ¶¶ 19, 22. Only Harold Burbank II appealed the Superior Court's judgment. Id. ¶ 5 n.4.

The appeal was originally filed by Attorney Mariah A. Gleaton, who later withdrew as the attorney. Thereafter, Harold Burbank II represented himself.

The misconduct focused on the appeal

By Order dated January 5, 2016, the Law Court rejected Burbank's brief, which was punched with three holes and bound with twine, see M.R. App. P. 7A(g)(3). The Law Court also ordered Burbank to show cause why he should not be sanctioned for failing to show why he should not be disqualified from representing three appellees-the family members he represented before the trial court-while representing himself as appellant. Burbank then moved to withdraw as counsel for the appellees.

The Law Court affirmed the Superior Court's decision, and also sanctioned Burbank for his serious misconduct in prosecuting the appeal.1 Id.¶¶ 61-64. In particular, the Law Court noted that Burbank stated facts not in the trial record, id. ¶ 24; raised issues without any further argument, id. ¶ 39; listed "meritless" and "frivolous" issues, id. ¶¶ 40-41; and made arguments "devoid of legal authority to support them," id. ¶ 52. The Law Court ultimately determined that there was "no merit in any of Burbank's arguments on appeal, including those raised in his reply briefs." Id. ¶ 45. At the conclusion of its decision, the Law Court summarized,

Throughout the various stages of this appeal, in his briefs, his Supplement of Legal Authorities, his request for oral argument, and his responses to opposing parties' motions, Burbank has consistently disregarded standards of law and practice that govern appellate review. He has asserted legal arguments that are frivolous and baseless, and, contrary to governing precedent, he has sought to have us consider and decide the appeal on new facts and new evidence that were not part of the trial record on appeal. Burbank's efforts have been disrespectful to the proper role of the trial court, unfair to and expensive for the other parties, and contrary to Maine appellate law. Burbank's frivolous and baseless actions are egregious conduct that has confused the issues on appeal, delayed final resolution of this matter, and significantly driven up the costs to other parties. Although the actions taken by Burbank would be concerning if he were a litigant unschooled in law, we note that Burbank is not only an attorney, but an attorney who is licensed to practice in Maine. He is therefore, presumed to be familiar with our case law, our statutes, and our Rules; his actions demonstrate either a complete lack of understanding or an intentional flouting of these guides.

Id.¶ 61.

Burbank's actions continue to be problematic. In his Answer to the within Information in this case, Burbank has admitted to making errors in applying and interpreting the applicable rules of court, but has asserted that some rules were not published, and thus he could not interpret or apply them; some rules were ambiguous; and his failure to file timely responses was due to his suffering a stroke. Burbank has failed to pay the $10,000 in sanctions imposed on him by the Law Court, nor has he fully paid the $20,000 judgment against him imposed by the Superior Court in the underlying litigation, and has since filed a Chapter 7 bankruptcy action in the Bankruptcy Court in Connecticut. Burbank also did not properly offer all the exhibits at this Bar Discipline Hearing that he made reference to in his post-hearing submission. In short, he does not appear to have a good grasp of the procedural rules of litigation.

Based on the findings and conclusions of the Law Court in Lincoln, in conjunction with the evidence presented at the hearing in this matter, this court finds and concludes that Burbank has violated the following Maine Rules of Professional Conduct...

Sanction

There are many aggravating factors in this case. The misconduct at issue is very serious. Burbank's conduct in the underlying litigation, and especially in the appeal in Lincoln, has caused substantial injury to the parties involved in the litigation as well as a waste of judicial resources. Although this court does not find that all of Burbank's misconduct was deliberate, as a practicing attorney, he certainly should have known that his conduct was far afield from the standards expected of a reasonably competent attorney, and that his actions constituted misconduct.

There are some mitigating factors that the court feels compelled to consider. Burbank has no prior disciplinary record in Maine, he was under great stress due to his father's poor health, and he himself has suffered from a stroke and is not in good health. There is also evidence that Burbank provided competent legal representation in Maine in the past, namely, in the effort by Ralph Nader to be placed on the Maine ballot as a presidential candidate in the early 2000s.

The main purpose of imposing a sanction in these disciplinary proceedings is the protection of the public. The sanction to be imposed must be significant because of the serious misconduct that is involved here, and must require that Burbank file a petition for reinstatement in order for him to be reinstated as an attorney in good standing.

Accordingly, pursuant to M. Bar R. 13(g)(4), and 21(b)(6), Harold H. Burbank II is suspended from the practice of law in Maine for a period of twelve months. The suspension is effective immediately.

(Mike Frisch)

January 30, 2018 in Bar Discipline & Process | Permalink | Comments (1)

Gone To Florida With A Toney Virtual Address

The New York Appellate Division for the First Judicial Department has suspended an attorney on an interim basis

In October 2016, the Attorney Grievance Committee (Committee), commenced an investigation into respondent's conduct after it received a complaint from V.G. alleging that he initially contacted respondent in April 2016 regarding "employee funds" he was seeking. Respondent's secretary informed him that after she verified that the check was not cashed, a new check could be re-issued after his identity had been verified. On May 8, 2016, V.G. emailed back an Affidavit of Identity and after emailing his bank account information, he finally received an email from the secretary on June 27, 2016, stating that respondent would be wiring him a payment. When no payment was forthcoming, V.G. asked for an update and on July 13, 2016, respondent emailed him stating that there were no signs of rejection from his bank and for him to contact respondent. Thereafter, V.G. provided his cell phone number for respondent to call and sent an email and left phone messages for respondent but no contact was made. On September 8, 2016, respondent sent an email to V.G. suggesting he contact him but V.G. was so frustrated with respondent's conduct that he didn't reply and discovered on his own that respondent allegedly turned over the subject funds to the California State Comptroller's Office.

The Committee sent respondent a copy of the complaint and a request for an answer to the address listed on the complaint form and to his OCA registered business address. The letters were returned stamped "not deliverable as addressed" or "attempted not known" and "return to sender." In March 2017, the Committee sent a request for an answer to the complaint to respondent's OCA registered home address in Connecticut (where he is also admitted) but the letter was returned as "moved, left no address." In April 2017, when the Committee called the phone number listed on the complaint, a receptionist answered and provided a mailing address for respondent located in Miami, Florida. On April 20, 2017, letters were sent to the Miami address by first class mail and certified mail return receipt requested but both letters were returned marked "no such number"; letters were also sent by fax and email but no response was received.

A Committee investigator located papers respondent had filed on February 28, 2017 in the U.S. District Court, Middle District of Florida which listed a Park Avenue South, NY, NY address. Accordingly, on May 25, 2017, the Committee served respondent with a subpoena duces tecum directing he appear for a deposition on June 20, 2017. The investigator learned that the Park Avenue South address was a "virtual address" which housed P.O. Boxes. An employee at that location confirmed that respondent maintained a mailbox there and agreed to personally place an envelope with the subpoena in respondent's mailbox. The investigator also attempted to personally serve respondent at his business address listed with OCA but upon a search of the area he learned that the address did not exist. The subpoena was also mailed to respondent at the Park Avenue South address by first class mail but was returned to the Committee as "unable to forward." Respondent did not appear for the deposition or otherwise contact the Committee.

On April 20 and July 12, 2017, the Committee emailed respondent at the email address listed on the complaint noting his failure to submit an answer to the complaint. Notably, on July 14, 2017, respondent emailed back that he was sorry the Committee was having trouble reaching him and he would "try to more fully respond to you over the weekend..." The Committee emailed respondent back, again requesting an answer to the complaint and advising that if he failed to provide such by July 21, the Committee would seek his interim suspension.

Disbarment will follow in six months if no response is filed. (Mike Frisch)

January 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Practice While Suspended And Default Draws Suspension

An Illinois Hearing Board proposes a six-month suspension of an attorney who had ignored the process

Respondent agreed to represent clients in two matters, after his name was removed from the roll of attorneys authorized to practice law in Illinois for failure to register or pay the registration fee for 2015. Specifically, Respondent agreed to represent a person who had to relocate her business as a result of a condemnation action. Respondent accepted $2,500 as legal fees from this client, gave her a business card which identified him as an attorney and participated in negotiating terms on which she would vacate the property. Respondent also agreed to represent that client's husband in a real estate purchase, for which Respondent accepted $500 as fees. Respondent took no further action on either matter, did not respond to the clients' inquiries and did not refund any of the fees he received.

In aggravation, the Panel considered Respondent's failure to participate in these proceedings. Respondent has no prior discipline, which is mitigating, but did not cause us to recommend a different sanction.

(Mike Frisch)

January 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 29, 2018

Almost Ungovernable

A Hearing Committee of the Law Society of Saskatchewan concluded that an attorney's pattern of bar complaints and failure to respond warrants suspension 

Counsel [for the Conduct Investigation Committee] noted that a number of the complaints in this history include allegations of failure to respond to the Law Society in a timely way or at all; there are also allegations of unreasonable and unexplained delays in other aspects of his practice, and of dilatory practice. Counsel provided the Hearing Committee with copies of the decisions of the hearing committees that dealt with all of these complaints...

As we have said earlier in this decision, there is no evidence that the previous pattern of complaints and disciplinary sanctions has made a genuine impression on the Member. Indeed, this pattern and his arguments before this Hearing Committee suggest that he considers these interactions with the Law Society as part of the cost of doing business. Though counsel for the Conduct Investigation Committee did not press us to draw a conclusion that the Member should be considered ungovernable, our view is that the disciplinary record in this case is strongly suggestive of a trend in that direction, and that only robust sanctions have any hope of attracting the attention of this Member.

Analysis

Were this a matter of dealing with a single charge of failing to reply promptly to the Law Society, the task of determining an appropriate penalty might be a fairly straightforward one, resolved by consulting similar prior instances of law Society disciplinary proceedings and choosing an analogous case. What creates a challenge for the Hearing Committee in this case is the lengthy and extensive disciplinary history of this Member, including examples of similar allegations to the one made here.

 This is the seventh occasion on which the Member has been before a hearing committee, and the penalties imposed on him have ranged from a suspension held in abeyance to permit him to receive practice management advice, to fines of various sizes, to suspensions for periods as long as 6 months.

A reading of the decisions relating specifically to the offence of failing to respond promptly to the Law Society reveals a pattern of successive requests for a response from the Law Society, perhaps a request for an extension of time to reply (always granted), further requests for a response, an indication by the Law Society of an intention to refer the matter to discipline, and, in nearly all cases, an ultimate response from the Member. In his submissions before disciplinary bodies, the Member has always downplayed the seriousness of this pattern of interaction with the Law Society, noting that while they may technically be a violation of the Code, it has caused no harm to clients and is thus at the "lower end" of the professional misconduct spectrum.

In the first disciplinary decision concerning this Member, which addressed a total of eight charges (including one of failing to respond to the Law Society), the sentencing body decided on a three-month suspension, along with a $3,000.00 fine and costs; the suspension was held in abeyance pending successful completion of professional standards programming. By the third disciplinary proceeding, which also included seven separate counts of failure to respond promptly to the Law Society, the penalty was escalated to a 6-month suspension, with practice supervision conditions, as well as costs.  The fifth time the Member faced a hearing committee, in 2013, a suspension of 30 days was imposed, despite the mitigating factors of an unexplained delay and the absence of any infractions after 2008; without those mitigating factors, it is Impossible to assess what sanction might have been considered appropriate. In the most recent disciplinary proceeding, in 2017, a 3-month suspension as well as a fine and costs, was considered appropriate. In all cases, the Law Society bodies responsible for sentencing the Member appear to have carefully considered the appropriateness and proportionality of the sanctions they imposed, and to have paid careful attention to the factors put forward by the Member. Those decision-makers seem to have taken seriously the principle of progressive discipline in calibrating their response to the Member's breaches of the Code.

 It is clear, however, that none of the sanctions devised by previous disciplinary panels has brought about lasting change in the conduct of the Member. Counsel for the Conduct Investigation Committee seemed at somewhat of a loss to provide guidance to this Hearing Committee about what sanctions would be appropriate, and we share his pessimism that any sanction we could impose, other than perhaps disbarment, would impress on the Member the seriousness of the pattern of successive infractions he has established. We also share the concern of counsel, so well-articulated in the Walsh decision, that the apparent inability of the Law Society to regulate the conduct of this Member has the capacity to undermine the credibility of the Law Society, and possibly also the legal profession, in the eyes of the public.

  It must be remembered that the principle of progressive discipline is founded on the notion that a person whose conduct is considered unacceptable should be given an opportunity to modify the impugned behavior and pursue a new course. If this does not have the desired effect in the first instance, a more stringent sanction is applied in order to persuade the offending party that there is indeed a need to change. This idea is based on a faith in the potential for rehabilitation of people who have broken the rules, but there will always be cases where this proposition is in doubt. The idea of progressive discipline cannot be seen as a strait jacket for disciplinary proceedings. It is necessary for those responsible for formulating a disciplinary regime in a particular case to be able to look critically at the likelihood of redemption. The Member's own submissions, suggesting as they do that he still has difficulty understanding the seriousness of the law Society's concerns, are discouraging in this respect.

We are in agreement with counsel for the Conduct Investigation Committee that the disciplinary record of the Member is an aggravating factor that elevates the seriousness of a breach of the Code which might be treated fairly leniently on a first offence. We also agree that there are no mitigating factors in this case; the Member himself acknowledged before us that it had been an error on his part not to respond to the Law Society Auditor more promptly. We have come to the conclusion that it is necessary for us to impose a significant sanction in light of the obliviousness shown by the Member to the gravity of the message previous hearing committees have been trying to convey to him.

Conclusion

This Hearing Committee has determined that the Member should be sentenced to a suspension of 6 months, a fine of $40,000.00 and costs in the amount of $1,865.00.

We acknowledge that this set of sanctions is a considerable escalation from previous disciplinary penalties imposed on this Member. We have concluded, however, that the only hope of convincing the Member of the significance of the regulatory regime which governs his conduct as a lawyer is to impose sanctions which may have a greater impact on his thinking than previous penalties apparently have. The primary objective of the Law Society is the protection of the public, and it is impossible for it to do this effectively if lawyers who fall under its jurisdiction refuse to treat its regulatory system with respect.  The insistence of the Law Society on timely and complete response from its members is not merely a technical rule which members are justified in slighting but is a fundamental aspect of a framework which is designed to ensure that the public can have confidence in the soundness of professional services provided by Saskatchewan lawyers.

Though counsel for the Conduct Investigation Committee drew back from using the label "ungovernable" to describe the record of this Member and did not argue that disbarment was an appropriate penalty in this instance, our own view is that any future infractions would make it necessary for a hearing committee to think in those terms.’

(Mike Frisch)

January 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Where There's A Will There May Be A Due Process Violation, Says Illinois Review Board

The Illinois Review Board recommends a two-year suspension of an attorney

The Administrator charged Respondent in a two-count second amended complaint with preparing a will that named Respondent's two children as beneficiaries, and with mishandling and dishonestly misappropriating client funds. Following a hearing at which Respondent was represented by counsel, the Hearing Board found that the Administrator had proven some but not all of the charged misconduct. It recommended that, for his misconduct, Respondent be suspended for two years.

Respondent filed exceptions. On appeal, he contends that Count I of the Administrator's complaint failed to give him fair notice of the charges against him, and that the Hearing Board's findings of misconduct in connection with both counts were against the manifest weight of the evidence. He also challenges its sanction recommendation. He asks this Board to dismiss the charges against him, or, in the alternative, to recommend a less severe sanction.

For the reasons that follow, we reverse the Hearing Board's finding of misconduct as to Count I. A majority of this Review Board panel affirms the Hearing Board's findings of misconduct as to Count II and agrees with its recommendation that, for his misconduct, Respondent should be suspended for two years. One member of this panel dissents, finding that the Hearing Board's findings of fact and of misconduct in connection with Count II are against the manifest weight of the evidence, and recommending that the entire complaint against Respondent be dismissed.

The attorney was admitted in 1981 and has been in solo practice since 1999 focused on family law.

All of the misconduct with which Respondent was charged arose out of his relationship and dealings with Glenn Burren, who died in 2007. The Hearing Board's report describes their relationship in detail; we summarize it here.

Respondent met Mr. Burren in 1976 when Respondent began dating Mr. Burren's daughter, Marion. After Respondent and Marion stopped dating a few years later, Respondent and Mr. Burren maintained their close relationship. It is undisputed that, for three decades, Mr. Burren was essentially a member of Respondent's family - long-term partner to Respondent's mother, and like a father to Respondent and grandfather to Respondent's two children. Mr. Burren also had three children of his own from an earlier marriage - a son, Glenn Jr., who died in 2006; daughter Marion; and another daughter, Linda.

In addition to his close personal relationship with Mr. Burren, Respondent represented Mr. Burren in three real estate transactions. The first was in 2000, when Respondent represented Mr. Burren in the closing of the sale of property in Chicago on Winona. Also in 2000, Respondent represented Mr. Burren in the closing of the purchase of a house in Des Plaines, which Mr. Burren bought in joint tenancy with his daughter Linda. The last one occurred in 2003 when Respondent, who was hired by Mr. Burren's sister, Pearl, to handle the sale of a house that she and Mr. Burren owned in joint tenancy, completed the closing after Pearl died, leaving Mr. Burren as sole owner.

In 2006, at Mr. Burren's request, Respondent filled out three power of attorney forms for Mr. Burren. The forms named Respondent as Mr. Burren's agent for health care and property. Respondent testified that he did not consider filling out the power of attorney forms as legal work because he only filled out the blanks on the forms.

Respondent also assisted Mr. Burren with his finances...

The will

In November 2003, Mr. Burren's sister Pearl died, and Mr. Burren, who was of modest means until then, received over $600,000 from Pearl's estate. Mr. Burren asked Respondent to help him with a will in which he planned to name Respondent's mother as a beneficiary. Respondent declined, telling Mr. Burren that he could not do that, and suggested Mr. Burren contact another attorney. Mr. Burren contacted attorney Ross Miller, with whom Respondent had previously worked. Mr. Miller drafted a will for Mr. Burren, and sent it to Mr. Burren with a cover letter dated December 31, 2003 that instructed Mr. Burren to contact Respondent "to do the execution." Respondent was copied on this letter.

On January 6, 2004, during a joint birthday party at Respondent's house for Respondent's son and Mr. Burren, Mr. Burren executed the will, with Respondent's mother, Nancy Miner, and another party guest, Walter Hladko, as witnesses. According to the testimony of both Respondent and Mr. Hladko, Respondent did nothing more than tell the witnesses where to sign the will and notarize a trust.

The will bequeathed 40 percent of Mr. Burren's estate to Respondent's children, Steven and Katy. It bequeathed the remaining 60 percent of Mr. Burren's estate to his own three children. It also contained a provision stating: "I appoint my attorney, Steven A. Miner, executor of this will."

Mr. Burren kept the will after it was executed but gave it to Respondent in June 2007, when he was in the hospital. After Mr. Burren died in July 2007, Respondent initiated probate proceedings in Cook County Circuit Court. Mr. Burren's children contested the validity of the will and sought to recover assets that they claimed Respondent had taken. The judge found the will to be null and void on grounds of undue influence, and ordered Respondent to pay the estate almost $500,000 plus $217,000 in interest. Respondent appealed. The circuit court's judgment was affirmed in July 2013. Respondent paid the judgment and the estate was closed.

The Review Board also sets out Respondent's involvement in Burren's financial affairs and finds dishonest conduct.

The will charges violated his due process notice rights

Count I of the second amended complaint was entitled "Preparation of an instrument of substantial gift from a client," and the charges in that count were based on the allegations that Respondent "prepared a last will and testament" and "devise[d] and prepare[d] a personal estate plan" for Mr. Burren. (2d Am. Complt. pars. 1, 3 (emphasis added).) Based on those allegations, the Administrator charged Respondent with violating Rule 1.7(b) by "representing a client when the representation may be materially limited by the lawyer's own interests, because Respondent's estate planning advice to Burren was materially limited by his interest in providing bequests to his own children." (Id. par. 10(b).)

The Hearing Board found that the Administrator failed to prove that Respondent had prepared Mr. Burren's will, but nonetheless found that he violated Rule 1.7(b) because of his "active involvement" in the execution of the will and because he functioned as the "attorney supervising execution of the will." (Hearing Bd. Report at 12, 14.) Respondent contends that he should not be disciplined for his role in the will's execution when the complaint alleged that he prepared the will and prepared and devised an estate plan for Mr. Burren. We agree...

The Hearing Board's labeling of Respondent's actions as "active involvement" in or "supervision over" the will's execution does not justify disciplining him for those actions when they were not alleged in the complaint. Respondent's role during the execution of the will - which, based on the evidence of record, appears to be limited to hosting the party at which the will was executed, pointing out the signature lines on the will, and notarizing a trust - does not equate to "preparing" the will or "devising and preparing" an estate plan.

The Administrator argues that the complaint alleged that the will was executed, and that the Administrator's counsel, in her opening statement, stated that Respondent drafted and executed a will for Mr. Burren. The Administrator thus contends that "a fair reading" of the complaint indicates that the conflict-of-interest charge against Respondent included not just drafting the will but also presiding over its execution.

We disagree. There is nothing in the complaint that would have notified Respondent that he was being accused of engaging in a conflict of interest by being present during the execution of the will. It seems to us that a reasonable person in Respondent's position would have believed that he was being charged with misconduct arising out of preparing the will, and would have defended himself against those charges by showing that he did not prepare the will. This, in fact, appears to be what Respondent did. To then discipline him for conduct that was not alleged and against which he could not defend violates the principles set forth in RuffaloChandlerDoyle, and the other due-process cases cited above.

At oral argument, counsel for the Administrator posited that this due-process issue is a "close call" that depends on whether we see this matter as more similar to In re Harris, 93 Ill. 2d 285, 443 N.E.2d 557 (1982), or In re Doyle, 144 Ill. 2d 451, 581 N.E.2d 669 (1991). The Administrator argues that, under Harris, Respondent was not prejudiced by having to respond to evidence adduced at trial that he engaged in a conflict of interest by arranging and presiding over the execution of Mr. Burren's will. While we respect counsel's candor, we do not see the call as particularly close. We believe this matter is analogous to Doyle, according to which we cannot discipline Respondent for conduct that came to light only after he and other witnesses testified about it at his hearing.

There was misconduct proven in the financial dealings

The Hearing Board engaged in a thorough and painstakingly detailed analysis of Respondent's check-cashing for Mr. Burren, including the amount of each check that Respondent cashed and the date on which he cashed it. (See Hearing Bd. Report at 21-31, incorporated herein by reference.) We believe that its analysis as a whole makes clear that it found sufficient evidence to establish that Respondent was not entirely forthright with Mr. Burren about his funds. We also have reviewed the record, and agree that it contains evidence to support the Hearing Board's finding of dishonesty.

In all, Respondent cashed 34 checks totaling almost $466,000. Based on the exorbitant amount of cash that Respondent handled on Mr. Burren's behalf, the Hearing Board found it incredible that Respondent would not have kept records to document what had happened to the cash, and would not have asked Mr. Burren why he needed that amount of cash or what he was doing with it. It thus inferred that Respondent was not completely candid with Mr. Burren about how that cash was being handled.

Furthermore, Respondent was a lawyer with decades of experience under his belt. Because of his professional background, we believe he should have known better than to handle hundreds of thousands of dollars of Mr. Burren's money with no documentation whatsoever regarding what he did with that money. The Hearing Board clearly felt similarly, which contributed to its finding that it did not believe Respondent's explanation regarding what he did with Mr. Burren's funds.

Sanction for the found violation

...taking into account Respondent's misconduct as well as the mitigating and aggravating factors, and keeping in mind that the purpose of discipline is not to punish the errant attorney but to protect the public (Hearing Bd. Report at 51 (citing In re Edmonds, 2014 IL 117696, par. 90)), we find that a suspension of two years, as recommended by the Hearing Board, is commensurate with Respondent's misconduct, falls within the range of discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline. 

Board member James T. Eaton would dismiss the entire case

I believe the Hearing Board's dishonesty finding suffers from two critical flaws. First, the Hearing Board based its dishonesty finding largely on speculation about what might have happened to Mr. Burren's funds, and what Mr. Burren might have intended with respect to his funds - with no evidence whatsoever to support its surmise. Second, a shifting of the burden of proof from the Administrator to Respondent pervades the Hearing Board's report, and is most notable in its dishonesty analysis. These two errors resulted in a finding that is unreasonable and not supported by the evidence, and therefore against the manifest weight of the evidence.

In its dishonesty analysis, the Hearing Board noted that, over a four-year period, checks totaling over $450,000 were issued on Mr. Burren's accounts and Respondent cashed most of them. It then stated: "There are virtually no records to document what happened to that cash and no testimony, except Respondent's, from anyone with actual knowledge of what happened to the cash. We were convinced that Respondent was not completely candid with Burren about how the cash was being handled." (Hearing Bd. Report at 42.)

It also stated that it "did not fully credit" Respondent's testimony that Mr. Burren wanted cash and that, but for a few bills that Respondent paid for Mr. Burren, Respondent returned the check proceeds to Mr. Burren in cash. It hypothesized: "Respondent probably did give Burren some of the cash; it seems unlikely that Burren would have continued to give Respondent checks to cash in Respondent never returned any cash to him. However, it seems equally unlikely that Burren wanted, or received, all of this cash." (Id. at 43-44.) Pointing to the large amounts and timing of the checks that Respondent cashed, the Hearing Board stated: "Given these circumstances, the concept that Burren just wanted cash is untenable. Something more was going on." (Id. at 44.)

The Hearing Board noted that Respondent was the only person to testify who had actual knowledge of what happened to the cash, given that Mr. Burren was obviously not available. It then noted that, "[i]n attempting to show he did not benefit from Burren's funds," Respondent presented testimony from his attorney in the probate case and a forensic accounting expert. The Hearing Board gave limited weight to the attorney's testimony about what happened to the funds, and did not find the expert's conclusions reliable for the reasons identified by the Administrator's expert, regarding the methodology Respondent's expert used to reach his conclusions. (Id.) The Hearing Board observed that the Administrator's expert "was not asked to, and did not, offer an opinion on what happened to the funds." (Id.)

The Hearing Board's analysis highlights the dearth of evidence regarding what happened to Mr. Burren's funds. The Hearing Board itself noted there were "no records" and "no testimony" other than from Respondent to show what happened to the cash, and that the Administrator's expert offered no opinion regarding what happened to the funds. Thus, other than Respondent's testimony and the checks signed by Mr. Burren, there was no evidence in the record regarding where Mr. Burren's funds went if not to him; how much of the funds Respondent purportedly took; what Respondent did with the funds; whether or not Mr. Burren authorized Respondent to do what he did with the funds; or any other issue that would prove by clear and convincing evidence that Respondent dishonestly took any or all of Mr. Burren's funds.

Consequently, the Hearing Board's conclusions are based largely on suspicion and supposition. The Hearing Board found that Respondent was not "completely candid" with Mr. Burren, but provided no evidentiary basis for why it believed this. It found that he "probably" gave some of the funds to Mr. Burren but that it was "unlikely" that Mr. Burren wanted or received all of the cash at issue, but, again, provided no evidentiary basis for that conclusion. It found it "untenable" that Mr. Burren just wanted cash and that "[s]omething more was going on," but cited no evidence, other than the amount and timing of the checks, for its conjecture.

January 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Encouraging False Testimony Draws Criminal And Bar Sanctions

Another "tantamount to disbarment" order from the Georgia Supreme Court involves a practice-related conviction 

The Times Free Press had the story of the crime

For the next three months, attorney Larry Bush Hill will eat and sleep with the type of clients he used to defend.

Hill pleaded guilty in Walker County Superior Court on Monday to charges of influencing a witness and attempting to suborn perjury, both felonies. He then walked into his office down the block, changed out of his dark suit and threw on a sky blue T-shirt, khaki shorts and thong sandals — a more comfortable outfit for his check-in at the jail.

In pleading guilty, Hill admitted that he tried to convince a key witness in a child molestation case to lie. He was representing Mark Lynn McGill, who is accused of getting oral sex from a 12-year-old boy in 2015. That case is pending, and the witness says she walked in on the act.

Earlier this year, the witness was arrested on a possession of methamphetamine charge. And soon after, according to an incident report, McGill approached the witness' girlfriend about making a deal. If she signed an affidavit, explaining that she didn't actually see the illegal act, McGill would pay for the witness' bond and hire an attorney for her. This conversation was recorded, according to the incident report.

Conasauga Judicial Circuit District Attorney Bert Poston, who prosecuted this case, said the witness told a Walker County Sheriff's Office investigator what McGill and Hill were up to. The sheriff's office then recorded a pair of jailhouse meetings between Hill and the witness in early May.

In the first meeting, according to an indictment, the witness maintained her original version of events: She saw the boy performing oral sex on McGill. But later that day, Hill returned with an affidavit, supposedly in the witness' words. The affidavit would have counted as a statement by the woman, explaining that she did not actually see the crime.

When Hill walked out of the room, a detective seized the document.

"The affidavit he brought to the second meeting contains statements he knew to be false," Poston said after Monday's hearing. "He didn't sign it. He brought it there for the purpose of signing it."

Before pleading guilty, Hill gathered in a circle in the courtroom with his mother, sister, brother-in-law, friends, pastor and lawyer. They prayed. Then, Hill hugged each person, holding them each for about 10 seconds. Wiping his eyes, he embraced an assistant court clerk, too.

In addition to three months in jail, Hill will surrender his law license, pay a $2,500 fine, serve 240 hours of community service and remain on probation for the next 10 years. He also agreed to testify in McGill's own witness tampering case, if that ever goes to trial. Hill will not have to take the stand concerning any evidence in McGill's child molestation case, as those conversations are protected by attorney-client privilege.

Hill's lawyer, Chris Townley, said the jailhouse recordings were the key pieces of evidence.

"I told Bert [Poston], 'Either you have it or you don't,'" Townley said. "If there's nothing on the recordings, [Poston] doesn't have a case. If the conversation is on the recordings, I don't have a case."

Hill, the son of former Lookout Mountain Judicial Circuit Judge Ralph Hill, was also the target of a 2015 Walker County Sheriff's Office investigation. Some inmates claimed he was sneaking drugs into the jail, and an undercover detective tried to set up a deal through him.

But during a recorded phone conversation, according to the investigative file, Hill told the detective he would not sneak in drugs. Detectives watched him smuggle cigarettes to an inmate. But they closed the investigation after a couple of weeks because Sheriff Steve Wilson said the evidence amounted to only a misdemeanor, if anything. Plus, one source told investigators that other inmates suspected he was a snitch.

January 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tax Attorney Sanctioned For Violent Crimes

The Georgia Supreme Court accepted the voluntary license surrender - tantamount to disbarment - of a convicted attorney

In his petition, Howell who has been a member of the State Bar of Georgia since 2010, admitted that in June 2016, he pled guilty in South Carolina to one felony count of Pointing/Presenting a Firearm, in violation of SC Code §16-23-410; one misdemeanor count of Unlawful Carrying of a Pistol, in violation of SC Code §16-23-20; and one misdemeanor count of Possession of Cocaine, in violation of SC Code § 44-53-370 (d) (3). Howell admitted that, by virtue of his felony conviction, he violated Rule 8.4 (a) (2) of the Georgia Rules of Professional Conduct. See Bar Rule 4-102. Thus, he requested acceptance of the voluntary surrender of his license to practice law, which he acknowledged was tantamount to disbarment.

We reported on the charges and disciplinary sanctions imposed elsewhere

An attorney disbarred in North Carolina has filed  a motion consenting to the same sanction in Illinois.

The criminal charges that formed the basis of the consent

On June 10, 2015, Movant was involved in an argument with his paramour while at Hudson’s Market at the Wild Dunes resort in Isle of Palms, Charleston County, South Carolina. During the argument, Movant pointed a black Ruger LCP .380 firearm at his paramour and others. Witnesses called the police, and officers arrested Movant outside Hudson’s Market. Upon arrest, officers found Movant to be in possession of less than one gram of cocaine.

On June 1, 2016, Movant entered pleas of guilty to one felony count of pointing and presenting a firearm at a person, one misdemeanor count of unlawful carrying of a pistol, and one misdemeanor count of possession of cocaine in Charleston County, South Carolina...and judgments of conviction were entered against him the same day. Movant was sentenced to a total of one year in the State Department of Corrections (with credit for time served) and five years of probation. Movant is currently on probation.

We had the story of his interim suspension in North Carolina linking to a report by WRAL.com

A 39-year-old Cary man, who has worked as a tax attorney in Raleigh, is accused of holding his ex-girlfriend hostage at a South Carolina grocery store.

The Isle of Palms Police Department has charged Robert Howell with attempted murder, kidnapping and first-degree burglary in the incident, which happened Wednesday.

Investigators said Robert Howell followed Autumn Yee, 29, of Cary, to Isle of Palms, where she was vacationing. Howell allegedly took Yee to Hudson's Market, where she alerted one of the clerks by silently mouthing "call police."

In a 911 recording, the woman can be heard speaking to an emergency operator about the situation.

 "I need you to come to Wild Dunes, please. There's a man with a gun and he's holding me hostage," she said. "I need you to get here quick."

Isle of Palms police Capt. Kimberly Usry said Yee tried to keep herself and her assailant in public places so someone could see them. At some point, she jumped over the counter to try to get away. Howell grabbed her, ran out of the store toward the beach and was arrested, Usry said.

Police said Yee, who suffered minor scratches in the incident, had gone to Isle of Palms to flee from Howell a day after he allegedly assaulted and threatened her in her Cary home.

"Officers responded and found that a subject and been harassing the victim there," Cary police Capt. Randall Rhyne said.

In a 911 call that day, Yee told dispatchers she arrived home and found him pacing back and forth in the road, staring at her. She said she was frightened and asked the call-taker to stay on the line until help arrived.

"I'm just afraid to get out of the car," she said in the recording released Monday. "I just want a cop to escort me to my door and ask him to leave."

Robert Howell and his estranged wife, Sarah Howell, are locked in a contentious custody battle over their three children. According to court documents, Sarah Howell had subpoenaed Yee in the custody case.

A day after Yee was held hostage, Sarah Howell sought a protective custody order against her husband, citing the kidnapping as proof that he posed a danger to her and her children.

Cary police said they are now working with South Carolina authorities to serve Robert Howell with additional warrants.

By my count, Georgia either disbarred or accepted the voluntary license surrender of seven attorneys.

Busy day. (Mike Frisch)

January 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred In Georgia

The Georgia Supreme Court has disbarred an attorney who was the subject of eleven grievances.

Two of the matters 

With regard to SDB Docket Nos. 6936 and 6939, the record shows that in April 2013, Morris was paid a $17,500 retainer to represent a defendant in a criminal matter in Henry County, Georgia. Although the client paid an additional $400 to cover expenses for an expert witness, Morris never hired the expert. Morris appeared at the call of the criminal jury trial calendar on January 25, 2016, and announced that he was ready for the trial, which was then set to begin with jury selection the next morning. Later that afternoon, the Assistant District Attorney (“ADA”) on the case overheard Morris on a telephone call in the courthouse men's restroom, apparently attempting to purchase controlled substances for himself. The ADA brought Morris’s behavior to the presiding judge's attention. The next morning, Morris appeared in court for jury selection but seemed to be under the influence of a controlled substance. He had bloodshot eyes and welts and bruises on his face, and he fell asleep at counsel's table. The court recessed the trial and held a hearing on Morris’s fitness to proceed as defense counsel. At that hearing, Morris declined the court’s request that he submit to a drug test; denied he was under the influence or that he had made the phone call the prior day; and threatened the ADA with bodily harm. The court held Morris in contempt and imposed jail time that was to be immediately served. As a result, when Morris’s client returned to court, she was advised by the presiding judge that Morris was unable to represent her and she would need to seek new counsel. Morris took no further action on behalf of the client, and failed to refund the unearned portion of the retainer. In addition, Morris was charged with Felony Intimidation of a Court Officer and Felony Terroristic Threats for threatening the ADA. In November 2016, Morris resolved the charges by pleading guilty to disorderly conduct and simple assault. Morris was properly served with the Notice of Investigation arising from the grievance filed by this client (SDB Docket No. 3936), but failed to timely respond.

(Mike Frisch)

January 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 27, 2018

Sexting Client Gets Maine Attorney Suspended

An order of the Maine Supreme Judicial Court

On or about June 15, 2016, Attorney Richard Berne filed a grievance complaint with the Board against Letourneau. According to that complaint, Attorney Berne submitted his filing on behalf of Letourneau's former court appointed client, "L.K."  Attorney Berne became successor counsel following L.K. 's discharge of Letourneau as her attorney on or about April 4, 2016.

The basis for Attorney Berne's complaint was Letourneau's graphically sexualized behavior toward L.K. during his representation of her concerning three serious criminal matters then pending in Cumberland and York County courts, respectively. Letourneau had been appointed to L.K. 's three criminal matters in January 2016.

According to the complaint, Letourneau's disturbing behavior began very early in his representation(s) of L.K. and continued up until her termination of him.

Letourneau's behavior included recurrent sexualized texting, i.e. "sexting" to L.K. and repeated suggestions by him that they meet to engage in sexual acts. Such unsolicited behavior by Letourneau, who was also then her attorney, was extremely embarrassing to, unwelcomed by, and intimidating to L.K., a vulnerable client. L.K. never reciprocated such sexting and she refused Letourneau's proposal to have sexual contact.

As a consequence of Letourneau's conduct, L.K. reported that she became anxious, apprehensive and even more worried about how her declination of her attorney's unwelcome behavior would affect the outcome(s) of her legal interests which he was professionally obliged to protect.

L.K. also reported feeling very distressed and felt forced to remain polite to her attorney, given the power he held over her representation. Such a "balancing act" by L.K. was all the more difficult as she was then newly in recovery from her opiate addiction, a fact known by Letourneau from his legal representation in all of her matters.

Additional facts involved in Letourneau's misconduct toward L.K. are specifically described as follows:

  1. Some of Letourneau's texts to L.K. included pictures of his genitalia.
  2. Letourneau had commenced sending the texts almost immediately after meeting L.K. and continued throughout his representation(s) of her.
  3. On three occasions, Letourneau had sent L.K. videos of himself masturbating.
  4. Within the text messages, Letourneau remarked to her that he "had a lot to lose" related to those texts.
  5. Letourneau's repeated behavior adversely affected their attorney-client relationship.
  6. Additionally, after L.K. personally informed Letourneau that his texts were unwanted and made her uncomfortable, he persisted in sending them to her.
  7. L.K. reported that during the representation by Letourneau, she was then hesitant to report him because he was court-appointed and she could not afford to hire replacement counsel.
  8. L.K. reported that she did not then cease all contact and communications with Letourneau, in order to avoid him adversely affecting her criminal cases.
  9. However, on April 4, 2016, L.K. discharged Letourneau and directed him to have no further contact with her.
  10. On or about April 20, 20l6, Letourneau filed Motions to Withdraw from L.K.'s two separate Cumberland County criminal matters.
  11. On April 25, 2016, the Cumberland County Superior Court (Fritzsche, J.) granted each Motion to Withdraw.
  12. Despite that client discharge referenced above, Letourneau failed to immediately move to withdraw from the combined York County matters (Theft Class D and Violating Condition of Release) he was representing and handling for L.K.
  13. Apparently, due to the posture of L.K.'s two York County cases, each of which was on deferred disposition, Letourneau remained as court appointed counsel for those matters in York County until July 26, 2016, well after L.K. 's April 4th discharge of him.
  14. Letourneau's professional obligation was to protect., rather than negatively affect L.K. 's legal interests.
RULE VIOLATIONS

By his conduct in this matter, the Court finds and Letourneau agrees that he violated the following Rules within the Maine Rules of Professional Conduct:

  1. l .7(a)(2) (conflict of personal interest);
  2. 1.16(a)(l)(2) (declining or terminating representation); and
  3. 8.4(a)(d) (conduct prejudicial to the administration of justice).
SANCTION
After opportunity for a contested hearing on December 6, 2017, the parties informed the Court that they had reached agreement on all previously disputed issues. Following recitation of the parties' proposal on the record, Mr. Letourneau's affirmation that he agrees with the proposed sanction and attendant conditions, it is now hereby ORDERED as follows:
  1. Paul L. Letourneau is suspended from the practice of law for a term of 20 months, sixteen of which he has already served. The date for Mr. Letourneau's reinstatement to active practice, conditioned upon his full compliance with the requirements enumerated herein, is April 1, 2018.
  2. Thereafter, Mr. Letourneau will be subject to one year of a suspended suspension ending on April 1, 2019, with a Monitoring of his law practice and required compliance with his reinstatement conditions. Any established violations of these reinstatement conditions will result in an automatic imposition of the additional year of suspension upon Mr. Letourneau.
  3. On or before December 21, 2017, Mr. Letourneau shall execute an updated contract with the Maine Assistance Program for Lawyers and Judges (MAP). By Court rule, that contract is confidential and shall include an initial restriction on Mr. Letourneau's return to practice and provisions for assistance with law office management concerns.
  4. The Monitoring of Mr. Letourneau and his practice shall be performed by a Maine lawyer mutually agreed upon by the parties. The Monitoring Order shall issue separately, but is incorporated by reference into this Order.
  5. Mr. Letourneau shall remain in treatment with Dr. Elyse Mangusson (or other agreed-upon psychologist/psychiatrist) and comply with all current (from the date of this order) and future treatment recommendations of that psychologist until such time as a modality of treatment is no longer necessary as determined by his treatment providers.
  6. On or before December 22, 2017, Mr. Letourneau shall execute releases for Dr. Mangusson and any other treatment providers to provide records and information to Bar Counsel and to MAP.
  7. Within one year from the date of this Order, Bar Counsel may seek to have Mr. Letourneau undergo an updated, comprehensive Psychosexual Assessment by a psychologist who specializes in such evaluations. If Mr. Letourneau objects to participating in an updated evaluation, the parties may elect to have the Court resolve the disputed issue.
  8. Mr. Letourneau shall never have any contact, direct or indirect, with LK;
  9. Through counsel, Mr. Letourneau is ordered to advise the Board of his current business and home addresses and notify it of any change in address within thirty days of such change;
  10. Through counsel, Mr. Letourneau is ordered to inform the Board of his employment status and where he is employed.
  11. If Mr. Letourneau works as a paralegal prior to his return to active practice, he shall have no direct client contact without the agreement of Bar Counsel or Order of the Court.
  12. If L.K. or her family files a claim with the Lawyers' Fund for Client Protection, Mr. Letourneau agrees not to oppose such requested relief by his former client.
  13. Mr. Letourneau shall not violate the Maine Rules of Professional Conduct or the laws of the United States or any state or local government during his suspension. If he engages in such violations, the Board may elect to bring the new complaint matter(s) directly to the Court for future disciplinary proceedings.
  14. Mr. Letourneau’s performance of the conditions of his MAP contract is a necessary requirement of this Order. Failure to so comply shall constitute a violation of the Order and may result in the automatic imposition of the additional term of suspension referenced in paragraph #2 of this Order.

The Clerk shall incorporate this Order into the docket by reference pursuant to M.R.Civ.P. 79(a).

Dated: January 12, 2018

(Mike Frisch)

January 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Does Estate Pay Legal Fees In Defending Guardian's Proposed Removal?

The South Dakota Supreme Court reversed and remanded a denied request to have an estate pay legal fees incurred by the guardian.

The question on appeal is whether a guardian’s attorney fees should be paid from a protected person’s estate when the fees were incurred in responding to pleadings to remove the guardian and to move the protected person to an assisted living facility. We reverse the circuit court’s denial of fees and remand to determine whether the fees were reasonable in amount and necessarily incurred in the administration of the guardianship.

The guardianship involved these players

Martin Bachand suffered a head injury in 2006. His son Michael Bachand was appointed guardian in 2007 and conservator in 2008. Notwithstanding the guardianship, Martin continued to live with his significant other and caregiver, Beverly Sears.

Michael and Martin began having disagreements, and Michael suffered a stroke in 2010, which required him to resign. A settlement agreement was reached under which Sears replaced Michael as guardian and Lyndell Petersen became Martin’s conservator.

Michael sought to remove Sears and retained a law firm

The attorney services included matters such as reviewing the entire nine-year-old case file, having property appraised, having Martin and his living conditions evaluated, conducting depositions, researching issues, and drafting court documents in response to Michael’s motion and petition. Following extensive preparation, a two-day hearing was scheduled. Although the parties and counsel appeared at the courthouse prepared to try the matter, the court urged the parties to confer and consider a settlement. The parties conferred and settled both disputes at the courthouse. Sears agreed to step down as guardian but Martin would not be moved to a facility. He would remain in Sears’s care in her home.

Sears incurred nearly $20,000 in fees and sought payment from the estate

Sears argues the fees were reasonable in amount and necessary for her, as Martin’s guardian, to respond to Michael’s petition and motion. She contends that as the court-appointed guardian, she had a duty to respond with particularity. In her view, she should not have to personally pay her attorneys when the purpose of their services was to gather evidence and prepare for a hearing that concerned the guardianship. She also contends that a number of attorney services related to necessary guardianship administration such as reviewing the file, preparing guardianship reports, obtaining evaluations of Martin and his living conditions, participating in depositions, and responding to subpoenas.

Appellees, however, argue that the services were not necessarily incurred and that the fees were not reasonable in amount. With respect to necessity, they contend these proceedings were necessary only because Sears failed to fulfill her duties as Martin’s guardian. They also contend that Sears obtained the services solely to preserve her status as guardian and personally benefit from household-expense payments incidental to the guardianship. Michael separately contends Sears misused her authority and failed to follow court orders.

The trial court denied any fees for Sears and thus

Findings of fact and conclusions of law are also necessary in this kind of case. After all, Sears may be entitled to some fees.

First, she appears to have prevailed on Michael’s motion to move Martin to an assisted living facility. On appeal, Sears argues that this was a resolution that Michael wanted and it was resolved in part upon an evaluation of a court-appointed therapist that was obtained during these proceedings. Second, we find it difficult to generally envision a situation in which the preparation of the guardianship report would not be necessary in the administration of the guardianship. Third, even Appellees concede that as guardian, Sears had a right to legal counsel. But we also acknowledge Appellees’ contention that Sears was either unwilling or unable to exercise her duties as a guardian. They also contend that Sears misused the guardianship trust. These contentions highlight our appellate dilemma. Without a resolution of factual matters relating to these conflicting claims, we are unable to meaningfully review the circuit court’s decision. We reverse and remand for the circuit court to address the parties’ conflicting claims and determine whether Sears’s attorney services were necessarily incurred in the administration of the guardianship and whether the fees were reasonable in amount.

(Mike Frisch)

January 27, 2018 in Billable Hours | Permalink | Comments (0)

Bank Shot

A litigant's involvement in the refinance of the judge's home did not form a basis for recusal, held the Tennessee Court of Appeals in affirming the trial court 's denial of the motion.

the Petitioner, by and through counsel, filed a Motion for Recusal. In his motion, the Petitioner noted that he was an employee at a “local financial institution,” where he worked as a “market valuation officer” and that the Judge had an ongoing business relationship with the bank. He alleged he “was directly involved in a decision-making process that ultimately resulted in an effect on the Court’s finances.” Because of certain banking laws, the Petitioner was not more specific in his motion, and he did not attach an affidavit, intending instead of presenting live testimony at the hearing.

The judge denied the motion.

The foregoing considered, we have identified the following three issues that require our analysis: (1) Whether the trial judge showed actual bias against Petitioner by failing to allow Petitioner to fully testify as to the facts supporting his motion for recusal; (2) Whether recusal is necessary based on Petitioner’s allegations that the trial judge was aware that Petitioner had “a direct, negative effect on the Court’s personal finances and the effect was substantial;” and (3) Whether the trial judge is a material witness to this matter.

As to the judge's cursory denial

the contention that the trial judge showed bias by refusing to allow Petitioner to testify in support of his motion for recusal is not sufficient, standing alone, to justify recusal. Moreover, Petitioner failed to comply with Rule 10B by not attaching an affidavit that verified the specific factual grounds supporting disqualification of the judge. Therefore, his failure to comply with Rule 10B provides a basis to deny the petition without a hearing on the motion.

I'll take refinance

We find no error with this decision because Petitioner failed to identify any factual basis to support his suspicion or unfounded belief that the trial judge knew or even suspected that Petitioner had made a decision that adversely affected the trial judge’s application for a loan. Moreover, the trial judge stated with clarity that he had no knowledge that Petitioner played any role in the loan application process. The trial judge also stated that he was unaware that there had been an opportunity for a lower interest rate, and he was not aware that Petitioner was involved in a decision that resulted in an increase in the interest rate. As the judge succinctly put it, “I applied for [the loan]. I was told, here is the deal, and I accepted the deal. . . . I was unaware of [Petitioner’s] involvement.”

Although Petitioner believes the judge knew of his involvement in the loan process, which suspicion is merely based on the fact that the judge knew Petitioner worked for the bank, this belief or suspicion lacks a factual foundation.

The judge is not a witness

The trial judge denied having any knowledge of the extrajudicial facts of circumstances Petitioner relies on, and this fact, without more, does not make the judge “a material witness concerning the matter,” the matter being the divorce proceedings. To the contrary, the trial judge’s response has no bearing on the substantive issues in the parties’ divorce, only the motion for recusal. Accordingly, the statements made by the judge from the bench and in the order denying the motion to recuse do not require recusal based on RJC §2.11 of Tenn. Sup. Ct. R. 10.

We also find it disingenuous for Petitioner to contend that the trial judge must recuse himself based on the judge’s response to the motion for recusal. If this were the case, every judge who may be justified in denying a motion to recuse on the basis he or she had no knowledge of extrajudicial facts or circumstances would, nevertheless, have to be recused based on statements the judge made in denying the motion. This contention is neither logical nor the intent of Rule 10B.

(Mike Frisch)

January 27, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 26, 2018

News From North Carolina

The excellent quarterly report of the North Carolina State Bar Office of Counsel has been posted for January 2018.

The report describes a pending matter

Craig M. Blitzer – 17 DHC 23

Blitzer, of Reidsville, is the former elected district attorney of Rockingham County. It is alleged that Blitzer allowed his staff to take online academic tests for his wife on State time. The grievance has been stayed pending the availability of the SBI investigative report. Blitzer pled guilty in Wake County Superior Court to misdemeanor willful failure to discharge duties. The Chair of the DHC entered an order of interim suspension of his law license.

The Winston-Salem Journal covered the criminal case.

Craig Blitzer pleaded guilty to the crime on July 17 to misdemeanor charges of failure to discharge the duties of his office after State Bureau of Investigation agents discovered that his wife, Cindy Blitzer, was paid that $48,000 while enrolled full-time in nursing classes at South University in High Point. 

 He awaits sentencing, and similar charges against Bradsher are pending in Wake County Superior Court.

“I sincerely regret my actions in connection with this matter,”  Blitzer said in the affidavit. “While my only motivation was the love I have for Cindy, I accept full responsibility.”

A case we previously discussed involves five accused law firm members

Jerry B. Clayton, Robert W. Myrick, Robert D. McClanahan, Ronald G. Coulter, and
Gladys Nicole Clayton – 17 DHC 25

It is alleged that the law firm of Clayton, Myrick, McClanahan, & Coulter, PLLC in Durham did not properly reconcile its trust account. It is alleged that Ms. Clayton did not respond to questions from Trust Account Compliance Counsel after a random audit. It is alleged that Ms. Clayton, Mr. Clayton, and Mr. McClanahan did not respond to the Grievance Committee. It is alleged that Ms. Clayton modified reconciliation records provided to the State Bar to hide dates so it would appear the reconciliations were timely performed when they were actually created on the date of production to the State Bar. It is alleged that Ms. Clayton made misrepresentations to the State Bar and that the other defendants either knowingly made the same misrepresentations or made those misrepresentations with reckless disregard as to their truth or falsity. Hearing is scheduled for June 27 and 28.

It is unusual to have a case alleging misconduct on the part of so many law firm attorneys. My cursory review of the dockets suggests that each attorney has individual counsel, which makes sense given the potential for conflict in assessing culpability.

Also

Arnold O. Jones – 18 DHC 3

Jones, of Goldsboro, was convicted of the federal felony of promising and paying gratuities to a public official in violation of 18 U.S.C. 201(c)(1)(A) for attempting to induce a law enforcement officer to unlawfully obtain the text messages of Jones’s wife. Hearing has not been scheduled.

The News & Observer reported on the Jones conviction.

A former Wayne County judge will be on probation for two years after offering a federal agent two cases of Bud Light and $100 to retrieve his wife’s text messages without the necessary search warrant.

Former N.C. Superior Court Judge Arnold Ogden Jones II was sentenced in federal court on Wednesday as part of a plea arrangement worked out with federal prosecutors earlier this year.

Jones also was fined $5,000 and ordered to perform 100 hours of community service.

The sentencing hearing in Elizabeth City in front of U.S. District Judge Terrence Boyle followed a court proceeding in March in which Jones agreed to a plea arrangement with prosecutors. Though he was accused of attempting to bribe a federal agent, Jones pleaded guilty to promising and paying gratuities to a public official.

A pending appeal involves a former colleague of mine from the Senate Watergate Committee

Eugene Boyce v. NC State Bar (Wake County Superior Court). Boyce alleges that he filed a grievance against Roy Cooper for conduct that allegedly occurred in 2000 when Cooper was a candidate running against Boyce’s son to become Attorney General of North Carolina. He seeks declaratory judgments that (1) the State Bar has a conflict in handling the grievance because the Attorney General represents the State Bar in various lawsuits and (2) the State Bar is obliged to refer the grievance to the courts for investigation and disciplinary action and an award of costs. The court dismissed the complaint. Boyce appealed to the North Carolina Court of Appeals. Oral argument was held February 7, 2017. We await a decision. The State Bar was represented by Parker Poe Adams and Bernstein in the trial court but is represented by the OOC on appeal.

(Mike Frisch)

January 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Pass the Gavel (Case)

The Maine Supreme Judicial Court has reprimanded a former judge for a failure to recuse

The facts are not disputed. On August 6, 2015, Judge Nadeau appointed Kerri Gottwald to serve as guardian for the minor daughter of Devora Gavel. Sometime thereafter Gavel made negative social media postings concerning Judge Nadeau, to which a person using the name of Judge Nadeau’s wife responded. Judge Nadeau acknowledges in his brief that he was aware of Gavel’s postings.

Gavel sought recusal but he did not

Nine days later, Gavel filed a complaint against Judge Nadeau with the Committee on Judicial Responsibility and Disability, asserting, in part, that “it is my belief that Nadeau intentionally refused to recuse himself, with full knowledge and awareness of his clear bias, in an effort to retaliate against, humiliate and bully me for speaking out against him in the upcoming election.” (Emphasis in original.) The Committee reported the matter to us and recommended disciplinary action against Judge Nadeau for violating Rule 2.11(A). Both the Committee and Judge Nadeau filed briefs and the report is now in order for our consideration.

 The court

Because of the combined effect of Judge Nadeau’s wife’s direct contact with Gavel through social media postings that Judge Nadeau was aware of, and Judge Nadeau’s acknowledgement that he had a bias that would require his recusal, Rule 2.11(A) required Judge Nadeau to recuse. Judge Nadeau acknowledged that he harbored a bias against Gavel at the outset of the hearing. The source of that bias was evidently the extra-judicial negative social media exchange involving Gavel, because when Gottwald’s counsel pointed out that a credibility determination based on a prior court proceeding did not require recusal, Judge Nadeau referenced Gavel’s pro se motion to recuse, in which she cited only the social media exchange, and then again said that “if there were an evidentiary hearing, I think, it would be appropriate for me to disqualify myself.” Despite the litigant’s indication that she was “uncomfortable” with the process, Judge Nadeau actively participated in negotiating and ultimately approving the final result, which, as evidenced by the detailed directive to Gavel concerning her potential future income, see supra n.5, required considerable judicial involvement.

 Judge Nadeau has left the bench amid unrelated ethics violations

We conclude that although a sanction resulting from this violation is warranted in order to deter others from similar misconduct, in Judge Nadeau’s case that need is tempered by the reality that he is no longer a judicial officer and is currently serving a lengthy suspension from the practice of law.

(Mike Frisch)

January 26, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Pleading While Intoxicated Gets Nebraska Judge Reprimanded

The Nebraska Commission on Judicial Qualifications has publicly reprimanded a judge for his actions in connection with an alleged violation of probation.

The defendant was on probation for reckless driving and was required to abstain from alcohol.

When a hearing was scheduled for alleged drinking, the case was called but the defendant was not in the courtroom. A person identified as the defendant's aunt told the judge that he was "passed out in the car" after drinking all night and had "downed a bottle of tequila" and that she (the aunt) was unable to get him to the courtroom.

Fifteen minutes later, the defendant was "brought into the courtroom in a wheelchair" and the case was recalled.

The judge took a guilty plea to the probation violation and had the defendant taken into custody where he tested a .4 blood alcohol content.

The judge knew or should have known that he was "probably too intoxicated" to enter a knowing and voluntary plea. 

When the news reported the actions, the judge permitted the defendant to withdraw the plea and vacate the sentence.

That offer was declined. (Mike Frisch)

January 26, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)