Friday, February 23, 2018
Google is not liable for content posted by a user per a decision issued today by the United States Court of Appeals fo.r the District of Columbia Circuit
Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third party content. We affirm.
Precedent involves Larry Klayman
In Klayman, we held that “a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.” Id. at 1358. We noted that, although the Facebook website’s “Statement of Rights and Responsibilities” might create an independent cause of action for breach of contract, the statement did not change the fact that the plaintiff was seeking to hold Facebook liable as a “publisher” of the objectionable material. Id. at 1359. Accordingly, we affirmed the district court’s dismissal of the plaintiff’s claims pursuant to section 230 of the CDA. Id.; see also Zeran, 129 F.3d at 331 (rejecting argument that defendant was “distributor” rather than “publisher” under CDA because it acquired “knowledge of the defamatory statements’ existence”).
This case is controlled by the three-part test in Klayman. First, as many other courts have found, Google qualifies as an “interactive computer service” provider because it “provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2); see, e.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d 242 F. App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google qualifies as an ‘interactive computer service’ and not an ‘information content provider.’”). Indeed, Bennett concedes that fact. Appellant’s Br. 6 (“Google provides interactive computer services, including websites and social media platforms.”). Second, Bennett alleges that only Pierson—and not Google—created the offensive content on the blog. Compl. ¶¶ 11-12.
Third, Bennett seeks to hold Google liable as a publisher of the content. Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Id. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Id.
In sum, the CDA “allows [computer service providers] to establish standards of decency without risking liability for doing so.” Green v. Am. Online, Inc., 318 F.3d 465, 472 (3d Cir. 2003). Although “other types of publishing activities might shade into creating or developing content,” the decision to print or retract is fundamentally a publishing decision for which the CDA provides explicit immunity.
Circuit Judge Henderson authored the opinion. (Mike Frisch)
The Iowa Supreme Court has allowed discovery into otherwise privileged information in a matter involving a former employee who complained about racial discrimination only after departing from the employment.
The decision was a 4-3 split.
The attorney had investigated the allegations as counsel to the employer.
Fenceroy stopped working for Gelita in March 2013. He filed a complaint with the Iowa Civil Rights Commission (ICRC) a short time later. The complaint charged Gelita with race discrimination. Upon receipt of Fenceroy’s ICRC charge, Gelita retained attorney Ruth Horvatich and tasked her with developing a strategy to defend the company during administrative proceedings.
Pursuant to this representation, Horvatich interviewed several Gelita employees to ascertain the merits of Fenceroy’s complaint. [Company Vice President] Tolsma was present for and participated in each interview. A union representative, John Hoswald, was also present during the employee interviews. At the end of each interview, Horvatich drafted a witness statement that summarized the employee’s account and instructed the employee to sign the document.
Horvatich’s investigation revealed some Gelita employees had made racially disparaging comments in the workplace. Gelita subsequently terminated one employee, Bob Kersbergen, and disciplined others, including Kent Cosgrove, Tom Haire, and Lewis Bergenske. Horvatich did not participate in any of the disciplinary decisions.
This review presents a significant issue regarding the boundaries of attorney–client privilege and work-product protection. We must decide whether plaintiff’s counsel may depose defense counsel and obtain counsel’s prelawsuit work product. After leaving his job, plaintiff filed an administrative complaint charging his former employer with race discrimination. In response to the charge, the employer hired an attorney to defend the company and investigate the merits of the charge. The employer filed an administrative position statement wherein it relied upon the attorney’s investigation to support its Faragher–Ellerth affirmative defense. In the subsequent civil action, the employer retained the same attorney and again raised the affirmative defense. The employer claimed attorney–client privilege and work-product protection over the investigation and moved for a protective order to prevent plaintiff from deposing defense counsel and obtaining her investigation notes. Yet, in its motion for summary judgment, the employer again relied upon the investigation to support its defense. The district court denied the protective order, and we granted the employer’s interlocutory appeal.
We conclude the district court did not abuse its discretion by denying the defendants’ protective order. When an employer raises a Faragher–Ellerth affirmative defense and relies upon an internal investigation to support that defense, the employer waives attorney–client privilege and nonopinion work-product protection over testimony and documents relating to the investigation. On remand, the employer is permitted to amend its answer and brief to limit the affirmative defense to only the period of plaintiff’s employment. If the employer declines to so amend, it may not claim attorney–client privilege or work-product protection over the 2013 investigation, and plaintiff may depose defense counsel as well as obtain counsel’s investigation notes.
Justice Waterman dissented
I respectfully dissent and would hold the district court abused it discretion by compelling the deposition of Gelita’s trial counsel Ruth Horvatich and production of her notes prepared in anticipation of litigation.
First, Gelita never waived its attorney–client privilege or work product protection by pleading or arguing the Faragher–Ellerth defense in district court. That defense was based solely on Mr. Fenceroy’s failure to use Gelita’s reporting procedures during his employment, before he retired and filed his discrimination complaint. The majority, contrary to precedent, finds that Gelita impliedly waived the confidentiality of its lawyer’s private notes and client communications by including this sentence in its lengthy brief supporting its motion for summary judgment: “Even though Plaintiff was no longer with Gelita at the time of his Complaint, in response to his charge, the Company investigated his allegations, discharged one employee, and disciplined three others.” I disagree that sentence constitutes an implied waiver. Gelita never relied on confidential attorney–client communications in asserting its defenses. Gelita was not using the attorney–client privilege as both a sword and shield and never blocked proper discovery into a matter it placed at issue.
Second, even if it was a waiver, Gelita clearly has retracted it. The majority questions that a retraction has occurred but allows Gelita the opportunity to retract the waiver on remand. I think this is unnecessary based on a fair reading of the record and Gelita’s appellate briefs.
Third, the majority also misses the opportunity to adopt the showing required under Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), and confirm that compelling depositions of opposing trial counsel during litigation should be a rare last resort, even when information might be obtained that is not subject to a privilege. This aspect of the court’s ruling could lead to a flurry of depositions of opposing counsel and a corresponding decline in civility in the Iowa bar. Frequently, both plaintiff’s counsel and defendant’s counsel have various nonprivileged interactions with others in the course of working on a case. The majority leaves the door open to each side deposing the other on these interactions. I would not do this. Fenceroy is not entitled to depose Gelita’s trial attorney Horvatich under Shelton...
Going forward, I also fear today’s decision will have a chilling effect on the routine practice of retaining outside counsel to investigate discrimination claims. If the employer’s lawyer can be deposed by plaintiff merely because the employer pleads a Faragher–Ellerth defense, will two different law firms have to be retained—one to investigate and the other to try the case? Will employers limit what they tell their lawyer who may be compelled to testify by the litigation adversary? Or will some employers be reluctant to retain a lawyer who might be compelled to provide adverse testimony? Will such employers lose the benefit of sound legal advice that would otherwise help them improve compliance with employment laws?
Two justices joined the dissent.
As noted, enjoy the improved transparency of the Iowa Supreme Court. (Mike Frisch)
"An Oxymoronic, But All Too Familiar, Combination Of Self-Serving Justifications And Sincere Explanations..."
The Iowa Supreme Court sanctioned an attorney for a pattern of lies and forgery
The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney, alleging numerous violations of the Iowa Rules of Professional Conduct in the attorney’s representation of a client in a dissolution proceeding. For fourteen months, the attorney misrepresented the status of the dissolution proceeding to his client and his client’s brothers. Moreover, the attorney prepared a fraudulent dissolution decree, to which he attached a signature page bearing a judge’s signature from a different case. A division of the Iowa Supreme Court Grievance Commission found the attorney’s conduct violated our ethical rules.
Based on the attorney’s violation of our rules, the commission recommended we suspend his license to practice law for eighteen months. On our de novo review, we find the attorney violated the provisions of our rules. However, we disagree with the length of the recommended suspension. We suspend the attorney’s license to practice law indefinitely with no possibility of reinstatement for one year from the date of filing this opinion.
How the lies unravelled
members of Miller’s family went to the office of the Clay County Clerk of Court to search for the records relating to Miller’s dissolution of marriage. The staff of the clerk’s office could not locate Miller’s dissolution decree in the court records. The staff contacted Barry’s law office and, in Barry’s absence, spoke with other members of the law office to inquire about the dissolution case. The staff subsequently sought assistance from the electronic data management system support office in Des Moines concerning the fraudulent decree Barry had presented to the Miller family.
The court sustained numerous ethics violations
Although we do not condone Barry’s lack of diligence and other violations of our ethical rules, we agree with the commission that the forging of a court order is the most egregious of his violations.
And found the most comparable case was misconduct by a former NCAA wrestling champion
Here, like the attorney in McGinness, Barry exhibited “remarkable persistence in pursuing his dishonest course[.]” See id. at 466. However, Barry continued his falsehood for fourteen months, a time period much longer than the length of the attorney’s falsehood in McGinness. Although we do not know if the attorney in McGinness would have also perpetuated his falsehood for just as long as Barry did, the fact of the matter is that opposing counsel in McGinness swiftly confronted the attorney about the fabrication of the discovery requests and certificates of service, thereby cutting short the length of the attorney’s deception. Moreover, more egregious than the attorney’s misconduct in McGinness, Barry forged a judge’s signature by attaching a signature page bearing the judge’s signature from a different case to a fraudulent dissolution decree. As already mentioned, forgery of a judge’s signature is a grave misrepresentation. Finally, unlike the misconduct of the attorney in McGinness, Barry’s misconduct caused harm to his vulnerable client.
As to remorse
Barry’s remorse and cooperation came on the coattails of the clerk of court’s discovery of his fraudulent dissolution decree. As the commission and the Board reasoned, “[T]here is nothing to suggest that Barry was prepared to abandon his course of deception prior to the Clerk of Court and Iowa District Court Chief Judge’s contact with Barry’s law firm.” In McGinness, we stated the attorney’s remorse and cooperation came after the district court entered an order imposing sanctions and the Board contacted him concerning a complaint about his misconduct. 844 N.W.2d at 467. We reasoned “[t]he chronology tends to deflate consideration of remorse and cooperation as mitigating factors.” Id.
Here, we agree with the commission that nothing in the record suggests Barry was prepared to abandon the path he was traversing but for the impetus provided by the unraveling of his deception. Notwithstanding the chronology of Barry’s self-reporting, because Barry expressed some level of remorse and cooperated with the Board, we find a deflated degree of mitigation.
Additionally, Barry self-reported his misconduct, although he delivered the letter to the Board after the clerk of court had contacted his law office inquiring about the dissolution file and it became apparent the end of his charade was just around the corner. Admittedly, his self reporting is simultaneously self-serving and apologetic. Barry apologized and stated he understands there should and will be consequences. Nevertheless, his letter portrays himself as a victim, rather than the perpetrator, and paints the Millers as relentless clients who pressured him for updates on the case and made threats against him for his slow handling on the matter.
As a whole, the letter contains an oxymoronic, but all too familiar, combination of self-serving justifications and sincere explanations for his actions. Despite the ambivalent nature of his letter, we give some deflated credit to him for detailing his misconduct in the letter.
His voluntary self-suspension was treated as mitigation but
We find Barry’s misconduct is more egregious than those in McGinness and Thompson because of the continuous nature of his misconduct over a long period of time. Rather
than owning up to his lack of diligence, Barry covered it up by forging a divorce decree. His actions not only caused the client but also the staff of the clerk’s office to expend time and resources to investigate Barry’s deception. Furthermore, Barry took advantage of a client who was in a vulnerable position. However, we find his misconduct is less egregious than that in Rickabaugh I. Accordingly, we suspend Barry’s license to practice law in Iowa for an indefinite period with no possibility of reinstatement for one year from the date of filing of this opinion. As an additional requirement for reinstatement, Barry must provide an evaluation from a licensed health care professional verifying his fitness to practice law.
The court's web page now provides easy access to the briefs in matters before it. Bravo (Mike Frisch)
The South Carolina Advisory Committee on Judicial Ethics opines on Inns of Court membership of a family court judge
The American Inns of Court have been in existence in South Carolina for some time. The American Inns of Court is an association of lawyers, judges, and other legal professionals from all levels and backgrounds. Through regular meetings, members are able to build and strengthen professional relationships; discuss fundamental concerns about professionalism and pressing legal issues of the day; share experiences and advice; provide mentoring opportunities; and advance the highest levels of integrity, ethics, and civility. A steering committee has been formed and created for a new chapter. A family court judge in the area is on the steering committee and wishes to participate in the chapter. However, because each inn determines its own membership by extending invitations, rather than being open to all members of the bar, the judge has inquired into the propriety of becoming a member. Specifically, the judge is concerned as to whether participation as a member would cause some non-member lawyers to feel that inn members have different access to the judge, i.e., create the appearance of partiality.
Room at the Inns for judges
The inns of court is a group whose activities are dedicated to the law, the legal system and the administration of justice. As such, a judge's participation in the group's activities, per se, is not unethical.
With regard to whether the judge’s participation could give other attorneys a perception that other Inns of Court members would have more, presumably preferred, access to judge members, this Committee finds that such perception would be unfounded and certainly would not serve as a bar to membership in an inn of court. As noted in the facts presented, historically judges have been members in the American Inns of Court and there are already several South Carolina chapters which include judges as members. There does not appear to be an allegation of preferential treatment of inn members or disqualification of judges in the areas where these other South Carolina chapters exist. In addition, other states have clearly allowed judges to be members of inns of court, as long as the judge abides by the other judicial canons regarding fundraising and/or recruitment of members. See, e.g., Serving as Member and Officer of Inn of Court; Involvement in Fundraising and Recruitment, (Mass. Sup. Jud. Ct. Comm. Jud Eth. 2005) 2005 WL 6734491, at *2. See also, Alabama Judicial Ethics Opinion 95-579, 1995 WL 17956160, at *1 (allowing judge to use surplus campaign funds to pay special membership dues to the Alabama State Bar and to pay membership dues to the local chapter of the American Inn of Court); Florida Judicial Ethics Opinion 2010-32, 2010 WL 7809088, at *1 (allowing a judicial member of an inn of court to participate in a program or skit performed by the chapter where the “best skit” award includes a monetary contribution to a charity of the group's choice).
Thursday, February 22, 2018
The Florida Supreme Court rejected a proposed second three year suspension and imposed disbarment instead
Ratiner was admitted to practice law in 1990. In each of the three disciplinary cases brought against Ratiner, two prior and the instant case, the misconduct arose in the course of his representation of plaintiffs against E.I. DuPont De Nemours & Co., Inc. (DuPont). The first disciplinary case resulted in a sixty-day suspension and a public reprimand, to be followed by a two-year period of probation, Fla. Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010), while the second case resulted in a three-year suspension. Fla. Bar v. Ratiner, 177 So. 3d 1274, 2015 WL 5156338, at *1 (Fla. 2015). Because the referee in this case found that the prior cases constituted aggravating factors, and because we conclude that they demonstrate the progression of Ratiner’s disparaging misconduct towards other members of the legal profession, we discuss the earlier disciplinary cases below in the context of our determination that disbarment is warranted in this case.
In this matter
One of the allegations of misconduct raised by the Bar was that Ratiner, during a post-trial hearing in the Sidran matter, was overheard saying "lie, lie, lie" in quick succession while opposing counsel conducted the direct examination of Ratiner’s law partner. At the hearing before the referee, the judge presiding in the Sidran case, Judge Amy Steele Donner, testified that she had heard Ratiner utter the words "lie, lie, lie," while at the time Ratiner denied that he had said those words. Ratiner testified before the referee that he had been talking to his associate in a low voice but that he had no recollection of saying "lie, lie, lie." In his report, the referee found Judge Donner’s testimony at the final hearing that Ratiner had in fact spoken the words "lie, lie, lie" "very credible."
In its complaint, the Bar also alleged that Ratiner, in the post-hearing proceedings in the Sidran case, repeatedly kicked the leg of counsel’s table where he was seated. The lead opposing counsel in the Sidran litigation, Andrew Brenner, testified before the referee that Ratiner was kicking counsel’s table "in a manner that was disruptive of the proceedings." The referee had Mr. Brenner demonstrate how Ratiner had been kicking the table, and found it to be "very loud." Judge Donner testified at the final hearing that she was aware that Ratiner had kicked the table, and she called a sidebar after he did it a second time. As a result of the kicking incident, she ended the post-trial hearing. Based upon the testimony of Judge Donner and Mr. Brenner, the referee concluded "that such behavior in fact would be disruptive to any judicial proceedings," and found that Ratiner intended to disrupt the proceedings...
Judge Donner testified that limits on closing arguments were agreed to by the lawyers, and when Ratiner exceeded his time, she gave him a few additional minutes but he stated that he would take whatever time he needed. Judge Donner also testified that she saw Ratiner " ‘wrinkling and throwing’ documents and that after 4-5 times of this behavior she reprimanded Respondent." On cross-examination, Judge Donner stated that she saw Ratiner throwing documents on counsel’s table, that he denied it, and that she told him that he was calling her a liar because she did see him do it. Judge Donner described Ratiner’s behavior at trial as "awful, that he was not respectful to the court or obeyed orders, and that she was ‘appalled.’ " Moreover, Judge Donner testified that Ratiner’s behavior "had been totally disruptive, that he was a ‘bully’ and that she called the Bar about Respondent’s behavior."
Disbarment is an extreme form of discipline and is reserved for the most egregious misconduct. See Fla. Bar v. Summers, 728 So. 2d 739, 742 (Fla. 1999); see also Fla. Bar v. Kassier, 711 So. 2d 515, 517 (Fla. 1998) (holding that disbarment is an extreme sanction that should be imposed only in those rare cases where rehabilitation is highly improbable). Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.
Daily Business Review reported on the earlier cases.
Ratiner, who became a lawyer in 1990, first got in hot water with the Florida Bar after he launched into a tirade against opposing counsel for DuPont during a 2007 deposition. Ratiner Trial Law represented orchid growers who alleged DuPont’s fungicide Benlate killed their plants.
The chemical company’s attorney tried to place an exhibit sticker on Ratiner’s laptop, and Ratiner tried to run around the table toward him before lambasting him to the point where the court reporter said, “I can’t work like this!”, according to the referee. The Florida Supreme Court suspended Ratiner for 60 days and put him on probation.
In 2009, Ratiner was in a document review session with DuPont when he loudly called opposing counsel a “dominatrix,” with “no substantial purpose other than to embarrass” her, according to the referee. He later tried to forcibly take papers from another female attorney, even after she told him, “Don’t grab [me] ever again.” The incidents led to a three-year suspension.
The first court decision is linked here. (Mike Frisch)
Wednesday, February 21, 2018
Revocation of license was ordered by the Tribunal Hearing Division of the Law Society of Upper Canada for misappropriation
The Licensee: (a) misappropriated over $300,000 in trust funds (Particular 4); (b) mishandled about $14,000 in trust funds (Particular 5); (c) did not maintain her books and records as required (Particular 6); and (d) misled the Law Society in annual reports filed with it (Particular 7). The other particulars originally contained in the Notice of Application were withdrawn at the hearing.
With respect to the misappropriation of trust funds, the total of the improper transfers made by the Licensee over a two-year period from July 2011 to July 2013 was about $308,200. These transfers were misappropriations as they were improper withdrawals from the trust account. These transfers from trust were “borrowed” to keep the Licensee’s practice afloat. She intended to cover the shortages later. She knew it was wrong to transfer money out of trust, even if it was for earned fees, without first rendering accounts.
Some of the transfers did represent earned fees that the Licensee intended to bill but she did not get around to preparing the invoices for clients. She did ultimately prepare client accounts totaling $20,024.84 and these accounts were posted to PC Law.
She may have been willfully blind initially to the fact that her unauthorized withdrawals from her trust account were creating a shortage. However, by November 2011 at the latest, she knew that her unauthorized transfers were creating a shortage in the trust account. Despite this knowledge, she continued the improper transferring of trust funds and even continued taking the trust funds after she had deposited $200,000 into trust, in November 2011, in an effort to correct the shortage.
The Licensee made a payment of $200,000 into the trust account in November 2012. She made a further payment of $105,000 in June 2013, for a total of $305,000. She made a further payment of $1,341.18 to the trust account on October 31, 2013 as a result of a miscommunication with her accountant. The total paid to the trust account was $306,341.18.
As to sanction
The mitigating evidence in this case, other than the medical evidence, does not qualify as exceptional. In this case, the Licensee ultimately made restitution by two installments during the course of the investigation, co-operated by signing the ASF, recognized what she had done was wrong, expressed remorse, and provided extensive character evidence from people in the legal community and the Barrie community at large. She is held in high regard by the authors of the letters. In the face of a presumptive penalty, however, this type of evidence is considered common.
Ms. Adams had a very difficult childhood, marred by sexual abuse, being raped when she was in grade two, racism and being in and out of nine foster care placements. Her treating therapist, who has over 40 years’ experience as a therapist, described her childhood experiences as the “most horrific situation I have seen for a young person to go through.”
Ms. Adams had been diagnosed with severe anemia, which resulted in her having to undergo an emergency hysterectomy and required a blood transfusion. She was also diagnosed as suffering from major depression exacerbated by the death of a number of family members between 2007 and 2013. In 2007, her foster mother died. In 2008, her foster father died. In 2011, her foster brother, with whom she was close, was killed in a car accident. In January 2012, her niece died. In July 2012, her biological mother died. In February 2013, her nephew drowned at sea. A week later her biological father died. She also lost her two beloved pets – her cat in the fall of 2011 and her dog, in 2012.
Psychologist, Dr. Giorgio Ilacqua, and treating therapist, Dr. Howard Irving, testified for Ms. Adams. Forensic psychiatrist, Dr. Lisa Ramshaw testified for the Law Society. All three experts agree that the lawyer suffered, at the relevant time from major depression. All three experts agree that the physical illness, her anemia, and the mental illness (the major depression) contributed to creating a connection to and the climate in which the misconduct occurred. All three experts generally agree that with changed circumstances, medical intervention, and ongoing therapy, it is unlikely that Ms. Adams will repeat the misconduct in the future. Her risk of re-offending is low. When he testified, however, Dr. Irving said that he was winding down his intensive ongoing treatment. This raises some concern that ongoing treatment is not in the picture for the future, particularly since ongoing intensive treatment was a key component in Dr. Ramshaw’s plan to lessen the risk of re-offending.
Dr. Ramshaw diagnosed the Lawyer as likely suffering a Major Depressive Episode (as part of a Major Depressive disorder) between 2011 and 2013, this was exacerbated by numerous losses and the moderate to severe iron deficiency anemia.
[Dr. Ramshaw explained that the ongoing bereavement caused by the loss of seven family members before and during the misappropriations, was the most likely stressor precipitating the Major Depressive Episode. The Lawyer was rendered more vulnerable to depression as a result of her traumatic childhood, marked as it was by instability, sexual assault and rape, rejection and racism. In addition, the Lawyer’s need to succeed, developed from her years of rejection and abuse in foster care, prevented her from being able to effectively problem-solve when she got into financial difficulty.
In response to questions concerning the risk of mental health relapse, Dr. Ramshaw said that while her childhood is always going to be with her, Ms. Adams “has a lot of strengths and resilience and now support to decrease that risk.”
Dr. Ramshaw highly recommended that Ms. Adams continue in therapy and that given the degree of her vulnerabilities, Ms. Adams will always need to have some form of therapeutic support to ensure she is functioning and at a low risk to having depression again. While she does not need to have therapy for the rest of her life on a monthly or weekly basis, she would need access to therapy when there are any “perceived difficulties or decline or times of stress.” Dr. Ramshaw said that the mental illness “prevented her from being able to effectively problem-solve when she got into financial difficulty”. But her clouded judgment did not affect her ability to have control over her actions. Once the extent of the trust misappropriations were apparent she was quickly able to replace those funds from her own resources and from borrowed funds. She was unable to explain why she did not do this in the beginning when she began experiencing financial difficulty in her practice.
Notwithstanding the above
Notwithstanding the medical evidence, and considering it from the point of view of a well-informed member of the public who understands that expert evidence, the panel is of the opinion that the public’s confidence in the legal profession would be significantly undermined if Ms. Adams were permitted to continue to practise. In addition, and importantly, the confidence of the legal profession in its own collective reputation would be seriously undermined if, after misappropriating over $300,000 in multiple transactions over a two-year period, and misleading the regulator about her trust account for three years, Ms. Adams were permitted to keep her licence to practise.
I should briefly allude to the underlying exceptional circumstances Ms. Adams experienced. They include an unimaginably horrific childhood: being shunted in and out of nine foster care homes; experiencing sexual abuse; and being raped when she was in grade two. Between 2011 and 2013, roughly coinciding with the two-year period when the impugned conduct occurred, Ms. Adams suffered a Major Depressive Episode (part of a pre-existing Major Depressive Disorder), severe and debilitating iron deficiency anemia, and an emergency hysterectomy requiring a blood transfusion. All of this was exacerbated by the deaths of seven close family members. Those losses include the deaths of both foster parents, both biological parents, an extremely close foster brother who died in a car accident, a nephew who drowned at sea, a niece and two of her beloved pets. One of the medical experts who gave evidence described the circumstances Ms. Adams suffered through as being a “perfect storm.”
The unchallenged and unanimous opinion of the three medical experts who examined Ms. Adams, provided written reports and testified at the hearing, found a direct causal relationship between the impugned conduct, Ms. Adams’ medical problems and these unimaginable underlying circumstances.
When Ms. Adams realized that the unauthorized transfers from trust had created a trust account shortage, she deposited $200,000 into her trust account in November 2012 from money she raised by mortgaging properties, deposited another $105,000, borrowed from friends, and then deposited a final $14,043.87 into her trust account in October 2013. As a result of these deposits, Ms. Adams had made full restitution by June 25, 2013.
The majority notes that the presumptive penalty for mortgage fraud and misappropriation is revocation. The reasons refer to jurisprudence that shows that a licensee’s psychiatric, psychological, and physical condition, together with individual circumstances involving extreme duress or desperation, have been held to warrant a departure from the presumptive penalty in cases where the impugned conduct not only is out of character and unlikely to recur, but explains why the misconduct occurred.
The dissent would allow her to resume practice with conditions. (Mike Frisch)
Discipline recently imposed in Colorado
The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Ian Trevor Hicks (attorney registration number 39332), effective February 8, 2018.
Hicks was hired in a defective flooring case. He and his client signed a contingency fee agreement on June 16, 2016. Ten days later, Hicks and the client kissed. They first had sex on July 4, 2016. Their intimate relationship continued until April 2017.
Hicks sent a demand letter in the flooring case in August 2016, and the case settled later that month for $15,000.00. The client was satisfied with Hicks’s representation.
During Hicks’s relationship with this client, he disclosed to her confidential client information regarding a number of his other clients. He occasionally forwarded to her emails from clients or opposing counsel, and he also sent her draft settlement demands and other draft documents. There is no evidence that the client disseminated or acted on any of this information.
Through this conduct, Hicks violated Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent) and Colo. RPC 1.8(j) (a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship began).
A 2 1/2 year suspension - making the attorney eligible to seek reinstatement - has been imposed by the New York Appellate Division for the First Judicial Department for tax crimes.
On April 14, 2014, respondent was convicted, upon his plea of guilty, in the United States District Court for the Northern District of New York of obstructing and impeding the Internal Revenue Service, in violation of 26 USC § 7212(a), a felony. On May 1, 2014, respondent was convicted, upon his plea of guilty, in the United States District Court for the Southern District of New York of two counts of failure to file individual income tax returns for the years 2006 and 2007, in violation of 26 USC § 7203, a misdemeanor.
He was released after serving 11 months.
Both the IRS and New York State are claiming significant taxes are still owed. Negotiations for a settlement and payment plan between the IRS and respondent and New York State and respondent remain ongoing.
On October 26, 2016, counsel for respondent filed an affidavit of compliance with this Court's April 14, 2015 interim suspension order.
Respondent admits that he was convicted of offenses which are defined as "serious crimes" under New York law and that his conduct violated rule 8.4(b) of the New York Rules of Professional Conduct (22 NYCRR 1200.0), which provides that a lawyer shall not engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer.
The parties agree that, in accordance with the case law and taking into account the factors in mitigation, a suspension of 2½ years, retroactive to his interim suspension dated April 14, 2015, is appropriate. The mitigating factors considered by the parties include respondent's candor about his misconduct, his acceptance of responsibility and expressions of sincere remorse and contrition; his filing of all outstanding federal and state tax returns for 2005 through 2010 covering all the years he had failed to file returns, and his payment of estimated payments totaling $118,000 for tax years 2006 through 2009; his position as a staff lawyer with the Legal Aid Society in the Bronx from 1984-1989, and as a solo practitioner handling mostly criminal defense matters representing many indigent clients, many of whom were Native Americans, from 1989-2015; his devotion to pro bono work in international human rights matters as a "significant" part of his practice, and his plan to continue this work upon his reinstatement; his devotion to caring for his longtime life-partner who has long-term serious mental and physical health problems; his own chronic health condition; his previously unblemished record as an attorney; his austere lifestyle, where respondent is without assets or an income; his actions did not harm his clients; his compliance with this Court's interim suspension order; and finally the consequences of his misconduct, insofar as he served 11 months out of his 18-month sentence in prison, three months in a halfway house and two months of home confinement.
The parties have agreed further, subject to this Court's consent, that in light of his age, the absence of any new allegations, and respondent's desire to return to "productive activity so that he may repay his back tax liability and teach abroad, as he plans to do," he should be allowed to apply for reinstatement immediately.
In light of the foregoing, we find that the proposed discipline of a 2½ year suspension, effective April 14, 2015, the date of his interim suspension, is an appropriate sanction for respondent's serious crimes.
As the period of suspension has already run, respondent may apply for reinstatement (22 NYCRR 1240.16[c]). Therefore, it is unnecessary for this Court to give respondent "permission to apply for reinstatement immediately," as the parties request.
The Georgia Supreme Court rejected a petition for voluntary discipline
The underlying grievance was filed by an attorney who represented Grady Hospital in lien collections, after he discovered that Braziel’s office submitted a fabricated lien letter from him to an insurance company. Although the State Bar supports the petition, we nevertheless reject it.
Braziel, who was admitted to the Bar in 2007, provides the following explanation for the fabricated letter. Braziel was in the process of trying to settle a client’s personal injury claim with the liability insurer and her client’s uninsured motorist carrier. Her client had been treated at Grady Hospital, incurring charges of $24,384.77, and Braziel believed that a lien had been filed but could not document it. Braziel recalled that she had received a Grady Hospital lien letter from Grady’s lawyer in another client’s matter, and she wanted to contact that lawyer to ask his assistance in determining if a lien had been filed or would be filed with respect to her current client’s hospital bill. While Braziel was traveling out-of-state to obtain treatment for a personal medical condition, she called her assistant to ask her to pull the Grady Hospital lien letter from the prior client’s file, to duplicate it, and to place it in the new client’s file, so that she could contact Grady’s lawyer for assistance. The call was made while Braziel was in the car in rural Mississippi and through poor reception of the call, poor instructions, and poor training of the assistant, the assistant misunderstood her instructions. The assistant created a duplicate of the Grady Hospital lien letter with the information for the new client and the expected amount of the lien, with the result being a letter that appeared to be from Grady’s lawyer to Braziel about a lien held by Grady in connection with Braziel’s representation of her current client. When Braziel saw the letter that had been created, she admonished her assistant and gave her additional instructions in her duties as a legal assistant.
Rather than destroying the letter, however, Braziel faxed it to Ms. Morris, an administrative service provider, and asked her to confirm the existence of the lien. Braziel explained the nature of the document to Morris and sent her the letter for internal, informational purposes only, as it contained the information Morris would need to track down the lien information. Braziel had engaged Morris, who has a law degree (but is not a member of the Georgia Bar), approximately six months earlier to assist with her law practice because she was overloaded due to ongoing health issues. Unbeknownst to Braziel, Morris sent the letter to the new client’s UM carrier. When Braziel learned about the existence of the letter from Grady’s lawyer, she severed her ties with Morris. The UM carrier did not pay any sums as a result of the letter. Braziel accepts responsibility for her actions and expresses deep remorse. She has also offered numerous mitigating factors. Braziel’s petition for voluntary discipline seeks a review panel reprimand.
In response, the State Bar does not specifically contest Braziel’s version of the facts, but it states that other witnesses might recall some of the facts differently. We note that the grievance filed by the Grady lawyer presents materially different facts.
The was concerned about both an admitted and unaddressed rule violation
Because of the uncertainty regarding the underlying facts, the inappropriateness of finding a Rule 7.5 violation in these circumstances, and the possibility that a Rule 8.4 violation may have occurred, we reject the petition for voluntary discipline.
Tuesday, February 20, 2018
The Utah Supreme Court affirmed the dismissal of bar charges against a former ALJ
This is an appeal in an attorney discipline proceeding involving Richard LaJeunesse. LaJeunesse has been licensed to practice law in Utah since 1996. From 2001 through 2012, he was the Presiding Administrative Law Judge (ALJ) and Director of the Adjudication Division of the Utah Labor Commission. In that capacity he adjudicated workers’ compensation disputes between occupationally injured employees and their employers or insurance carriers. He also oversaw the work of other ALJs.
This case arises out of a policy adopted by LaJeunesse in his work as Presiding ALJ and Director of the Adjudication Division. The policy concerned ALJs’ treatment of medical panel reports submitted under Utah Code section 34A-2-601(2). That provision requires an appointed medical panel to make “a report in writing to the administrative law judge in a form prescribed by the Division of Adjudication.” UTAH CODE § 34A-2-601(2)(b)(i). It also directs the ALJ to “promptly distribute full copies” of that report to all parties and their attorneys. Id. § 34A-2-601(2)(d)(i). LaJeunesse interpreted this statute to leave room for an ALJ to reject reports submitted by medical panels and to request changes to the form and verbiage in a report—without submitting the rejected report to the parties or their attorneys. Applying this policy, another ALJ working under LaJeunesse’s supervision (Debbie Hann) rejected reports she deemed noncompliant and requested medical panels to submit replacement reports. In those instances she did not provide a copy of the rejected report to the parties or to their counsel. LaJeunesse knew of three of these instances. And he personally participated in rejecting a medical panel report and requesting a new report in one instance.
A party in one of these cases discovered that a medical panel report had been rejected without being distributed to the parties. An audit and investigation ensued. The Utah Labor Commission ultimately concluded that the policy adopted by LaJeunesse ran afoul of explicit and implicit mandates of the Workers’ Compensation Act, including the requirement that ALJs “promptly distribute full copies” of medical panel reports to parties and their attorneys. Id. It also faulted LaJeunesse for embracing a policy that allowed ALJs to destroy medical panel reports without informing the parties of the existence of such reports or of the nature and extent of proposed changes to them. Thus, the Commission repudiated the policy adopted by LaJeunesse, instructing ALJs that they could no longer withhold medical panel reports. And the Commission ultimately terminated LaJeunesse for his role in adopting and implementing a contrary policy.
The attorney was charged with conduct prejudicial to the administration of justice
Judge Stone concluded that LaJeunesse had not engaged in conduct prejudicial to the administration of justice. He held that LaJeunesse had a sound legal basis for the policy he had adopted or, alternatively, that a lawyer exercising quasi-judicial power (as an ALJ) cannot be found in violation of rule 8.4(d) merely for adopting a reasonable interpretation of a statutory scheme that is ultimately shown to be incorrect.
We affirm on this latter ground. We conclude that a lawyer cannot be charged with conduct prejudicial to the administration of justice for adopting a good faith but mistaken interpretation of a law that governs the lawyer’s performance of quasi-judicial authority.
We can understand the OPC’s motivation in pursuing this case. The policy adopted by LaJeunesse seems to have interfered with the transparent operation of the system of adjudicating workers’ compensation disputes. It may have deprived parties and their counsel of the opportunity to object to proposed changes to medical panel reports. And the policy in question may ultimately be incompatible with the terms and conditions of the Workers’ Compensation Act—or at least with best practices thereunder. That is not enough to sustain a charge of conduct prejudicial to the administration of justice under our rules of professional conduct, however. We affirm the dismissal of the charge against LaJeunesse because we conclude that the policy in question was adopted in a good faith attempt to interpret the law.
Monday, February 19, 2018
The Florida Judicial Ethics Advisory Committee opines:
Opinion Number: 2018-03
Date of Issue: February 4, 2018
1. Whether a judge must recuse based on information that an attorney who regularly appears before the judge is “thinking” of running against the judge.
ANSWER: No, unless a personal bias or prejudice against the attorney or the attorney’s client has developed.
2. Whether the judge may ask the attorney directly whether the attorney intends to run against the judge.
The inquiring judge has received “credible” information that an attorney who appears before the judge on a regular basis is “thinking” about running against the judge in the upcoming election cycle.
The judge also notes that there is a pending dispute between the attorney’s family and the judge’s parents, the origin of which occurred “a couple of years ago.” The judge states that there is no issue between the judge and the attorney over the matter; nor has there ever been a related recusal or motion to disqualify.
The judge reports that the community in which the judge sits is very small, and that the attorney appears in front of the judge frequently representing the same client. The judge reports having no feeling of personal bias against the client, but is concerned about the appearance of impropriety. The judge is also concerned about the impact recusal would have on the dockets of the other judges in the jurisdiction in which the judge sits.
We agree with the Arizona Judicial Ethics Advisory Committee. We do not believe that either rumors or direct statements from an attorney to others that the attorney is “thinking” about running against the judge, or notice directly from the attorney to the judge that the attorney is “thinking” about running or intends to run, would reasonably draw into question the judge’s impartiality. The inquiring judge here has stated expressly that the judge has not developed a bias against the attorney’s client but is merely concerned about the appearance of impropriety. We conclude that until the attorney formally announces opposition to the judge, there is not a reasonable basis to question the judge’s impartiality that needs to be addressed by the judge.
The Cleveland Plain Dealer reports on a reinstatement recommendation
An Ohio attorney disciplinary panel says a Cleveland-area lawyer who participated in bribing sexual assault victims to try to keep his client out of prison should get his law license back.
The Ohio Supreme Court indefinitely suspended Marc Doumbas' law license in 2017 based on his conduct in representing a client along with Cuyahoga County corruption figure Anthony Calabrese III. A jury found Doumbas, 49, guilty of two counts of bribery and he was sentenced in 2013 to a year in prison.
Doumbas' license was placed on an interim suspension between 2014 and when the Supreme Court ruled last year. After asking the court in September to reinstate his law license, the Ohio Board of Professional Conduct wrote Monday that it is backing him.
The board wrote that Doumbas, who lives in Avon Lake, has held several jobs since his law license was suspended, including working in a machine shop, as a longshoreman, for the repossession company Relentless Recovery and selling used cars. He also worked at Sainato's pizza restaurant in the Flats.
At a hearing in front of the board in January, Doumbas said he took full responsibility for the actions that sent him to prison and said he has identified procedures and practices to prevent making another mistake, according to the board's recommendation.
The board wrote that Doumbas "possesses all of the mental, educational, and moral qualifications that were required of an applicant for admission to the practice of law" when he was admitted to practice in Ohio in 2001.
The Ohio Supreme Court will next decide whether to accept the board's recommendation.
Doumbas did not immediately return a phone call.
Calabrese hired Doumbas and G. Timothy Marshall to represent Thomas Castro in a criminal case in which Castro was charged with sexually assaulting two women.
Marshall, Calabrese's uncle, offered one of the victims $54,000 plus an additional $6,000 for her attorney for her "pain and suffering" while Castro's case was pending. The woman construed the offer as a bribe and rejected it.
After Castro pleaded guilty to two counts of sexual battery, Marshall tried to again offer the same woman $50,000 to "say something nice to the judge" during the sentencing hearing.
That message never reached the woman.
Calabrese offered the second victim $50,000 through her attorney as a potential civil settlement in exchange for writing a letter asking for treatment for Castro rather than prison time. Calabrese later increased the offer amount to $60,000, then $90,000, but the woman rejected the offers.
Castro was sentenced to four years in prison. Doumbas claimed he did not make any of the offers to the women, but prosecutors said he knew of Marshall and Calabrese's actions and was therefore complicit.
The Ohio Supreme Court in 2015 permanently disbarred Calabrese after his conviction on racketeering charges in the fallout of the county corruption probe that ensnared dozens of officials and contractors for paying and taking bribes. Calabrese is serving a nine-year federal prison sentence.
Marshall died in 2016.
Doumbas is also asking a Common Pleas judge to expunge and seal his case.
Hat tip to Ohio Supreme Court web page. (Mike Frisch)
Sunday, February 18, 2018
A case that began with an anonymous email to the State Bar has resulted in the following consent sanction approved by the Arizona Presiding Disciplinary Judge
[Respondent] is reprimanded for his conduct in violation of the Arizona Rules of Professional Conduct, as outlined in the consent documents, effective the date of this order.
IT IS FURTHER ORDERED Mr. Thrasher shall be placed on probation for one (1) year. The only term of probation is that, in addition to his annual MCLE requirements, Mr. Thrasher shall complete six (6) hours of Continuing Legal Education (“CLE”) on the subject of lawyer advertising. Mr. Thrasher shall provide the State Bar Compliance Monitor with evidence of completion of the program(s) by providing a copy of handwritten notes. Mr. Thrasher shall contact the Compliance Monitor at 602-340-7258 to make arrangements to submit this evidence. Mr. Thrasher shall be responsible for the cost of the CLE. Probation may terminate early if Respondent completes the ordered CLE before the end of one year.
A thumb drive was attached to the email that contained audio and video showing the attorney giving $16,000 in cash to a man in a wheelchair.
In response to the State Bar inquiry, Respondent confirmed that it was his voice on the thumb drive and that the man in the wheelchair was the founder of a non profit that assists the victims of spinal injuries.
The $16,000 was a referral fee.
The audio/video also memorialized a discussion of another referral fee in a matter that had settled for $1.5 million. Respondent discussed the tax consequences of him paying $45,000 to the man in the wheelchair.
Respondent on tape; "You need the money, I need the money...two of these a year would be golden." (Mike Frisch)
I am pleased to note that the web page of the District of Columbia Board on Professional Responsibility has been updated to give public notice of upcoming scheduled bar disciplinary hearings.
February 8 & 9, 2018, 9:30 a.m.
March 12-16, 2018, 10:00 a.m.
March 19, 20, 23, 2018, 9:30 a.m.
March 20-23, 2018, 9:30 a.m.
March 27, 2018, 10:00 a.m.
April 5 & 6, 2018, 9:30 a.m.
April 12-13 & 19-20, 2018, 9:30 a.m.
May 30 - June 15, 2018, 10:00 a.m.
An attorney who represented Sheriff Joe Arpaio and Maricopa County in defending a lawsuit alleging mistreatment while incarcerated has accepted an admonishment by the Arizona Presiding Disciplinary Judge.
Ms. Flaggman conditionally admits she violated Rule 42, ERs 3.3 (candor before tribunal) and 8.4(d) conduct prejudicial to the administration of justice. The agreed upon sanctions include an admonition and one (1) year of probation to include 5.75 hours of continuing legal education (CLE), and costs totaling 1,200.00 within thirty (30) days from this order.
The parties agree to an admonition and one (1) year of probation (CLE). Ms. Flaggman shall also pay the State Bar’s costs and expenses totaling $1,2000.00. The objective of discipline is met by the admonition
Respondent had moved for summary judgment based on the plaintiff's alleged failure to timely respond to discovery. On the day that the motion was filed, plaintiff contacted her by email and confirmed that the responses had been timely filed, a fact that she acknowledged.
The plaintiff filed no response and the respondent did not withdraw the motion.
As you might suspect, motion granted.
Plaintiff initially took no action.
The respondent consulted with her colleagues and reached a conclusion that the burden was on plaintiff to set aside the judgment as the "ball was in his court."
Plaintiff moved for reconsideration. The respondent did not oppose but the case was rotated to a new judge who entered judgment for the defendants.
Just before the six-month period ran, the plaintiff moved for reconsideration. The respondent did not oppose and the case was reinstated.
The judge in the underlying case referred plaintiff's counsel - but not respondent - to the State Bar for investigation. (Mike Frisch)
Saturday, February 17, 2018
Tennessee Disbars Two: Metal Pipe Injury Defense Rejected In One Case; Other Followed In Footsteps Of Davy Crockett
The web page of the Tennessee Supreme Court
The Tennessee Supreme Court disbarred two Nashville attorneys, Sean K. Hornbeck and Robin K. Barry, revoking their law licenses. The Court rejected both attorneys’ requests to make the disbarment retroactive in order to enable them to apply for reinstatement of their law licenses sooner.
In the first case, Mr. Hornbeck persuaded a client to advance him over $5 million as part of a proposed financial venture that he promised would produce substantial payouts. Mr. Hornbeck deposited the client’s money into his trust account. When the payouts did not materialize, the client demanded his money back. Mr. Hornbeck returned only $1 million of the over $5 million entrusted to him. The rest of the client’s money was never recovered.
In December 2008, a complaint was filed with the Tennessee Board of Professional Responsibility, which is responsible for investigating complaints against lawyers and disciplining them for ethical violations. The Tennessee Supreme Court immediately suspended Mr. Hornbeck’s law license while the Board investigated the complaint.
A hearing panel of lawyers heard the evidence against Mr. Hornbeck. Mr. Hornbeck claimed that his mental state was affected by family crises and an injury from being hit in the head with a metal pipe. The hearing panel rejected this explanation and held that Mr. Hornbeck should be disbarred.
Mr. Hornbeck appealed to the chancery court. The chancery court affirmed the hearing panel’s judgment of disbarment, and Mr. Hornbeck appealed to the Tennessee Supreme Court.
In the second case, Ms. Barry deposited money from clients into her trust account. This money was intended to be held in trust for the clients. Instead, Ms. Barry comingled the funds with her own monies and generally used the funds in the trust account as operating funds for her law practice.
The money in Ms. Barry’s trust account included disputed insurance proceeds held for a client. While she negotiated a settlement on the insurance proceeds, Ms. Barry moved to Texas. She did not tell her Tennessee client that she had moved.
When the dispute over the insurance proceeds ended, Ms. Barry paid most of the insurance proceeds to the other party in the dispute, and then emptied out her trust account. Shortly after, Ms. Barry’s Tennessee client asked Ms. Barry to send her the remaining insurance proceeds that were owed to her.
Over the course of the next two years, Ms. Barry proceeded to stonewall her Tennessee client’s inquiries about the remaining insurance proceeds. First she made up reasons why the money could not yet be paid, then she promised to pay what was owed, and then she stopped responding at all. Ms. Barry never told her Tennessee client that she had moved to Texas. Even after the client tracked down Ms. Barry in Texas, she continued to stonewall the client.
The client finally filed a complaint with the Board of Professional Responsibility. The Tennessee Supreme Court suspended Ms. Barry’s law license while the Board investigated the complaint.
A hearing panel of lawyers heard the evidence against Ms. Barry and decided that Ms. Barry’s law license should be suspended for a period of time. The Board appealed to the chancery court, which reversed the hearing panel and entered a judgment of disbarment.
Ms. Barry appealed to the Tennessee Supreme Court. She argued that she should not be disbarred. Alternatively, like Mr. Hornbeck, Ms. Barry asked the Court to make her disbarment retroactive to the date when her law license was first suspended so that she could apply for reinstatement of her law license sooner.
As to Ms. Barry, the Tennessee Supreme Court found that disbarment was the appropriate remedy under the ethics rules, and it affirmed the chancery court on that issue.
The Court rejected both attorneys’ requests to make their disbarments retroactive to the date of their temporary suspension. The Court explained that when serious complaints are received and are being investigated by the Board, the Court will typically suspend an attorney’s law license during the investigation. If the attorney is disbarred, the disbarment becomes effective when the Court enters its order of disbarment, after all appeals are over. Disbarment is almost never retroactive.
The Court acknowledged that, under the ethics rules, five years after disbarment, a disbarred lawyer is allowed to apply for reinstatement of his or her law license. Regardless of a lawyer’s hope of reinstatement, the Court explained, “disbarment does not contemplate that the disbarred attorney will return to the practice of law. The purpose of disbarring an attorney is to remove from the profession a person who has proven to be unfit or unworthy of being entrusted with the duties and responsibilities accorded to those who have gained the privilege of a law license.”
In both cases, the Court affirmed the chancery courts’ judgments of disbarment and refused to make the disbarments retroactive. Therefore, both disbarments became effective when the Court entered its order of disbarment.
To read the unanimous opinions in Sean K. Hornbeck v. Board of Professional Responsibility of the Supreme Court of Tennessee and Board of Professional Responsibility of the Supreme Court of Tennessee v. Robin K. Barry, authored by Justice Holly Kirby, go to the Opinions section of TNCourts.gov.
In the Barry matter
The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney’s Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel’s decision was arbitrary and capricious and that disbarment was the only appropriate sanction.
The oral argument in the Barry case is linked here.
The Hornbeck oral argument is linked here.
Friday, February 16, 2018
The Kentucky Supreme Court has permanently disbarred Eric Conn
The factual basis leading to Conn's disbarment is found in KBA files 22222 and 16-DIS-24363.
KBA file 16-DIS-24363 stems from Conn's guilty plea following his March 16, 2017, plea to two felony counts in criminal ·proceedings before the United States District Court, Eastern District of Kentucky. The Inquiry Commission filed a two-count charge against Conn on September 22, 2017, alleging violations of.SCR 3.130(8.4)(b)2 and SCR 3.130(8.4)(c).3 Conn failed to answer the charge and the matter was submitted to the Board of Governors for processing as a default under SCR 3.120. Through counsel, Conn acknowledged his actions constituted.unethical conduct in violation of the above Rules of Professional Conduct and by letter tendered his resignation to the KBA.
KBA file 22222 is the result of a guilty plea to a misdemeanor charge in the Circuit Court of Franklin County, Kentucky. Conn pleaded guilty to violating KRS 121.150( 12) by making a gift of money to another person to contribute to a candidate on his behalf. The felony charge was reduced to a Class A misdemeanor, Conn entereq a guilty plea, and was sentenced to 12 months in jail, conditionally discharged for two years.
We agree with the KBA. Conn's action's, as reflected in his pleading guilty to multiple charges, exhibit condµct which make him unfit to practice law in the Commonwealth. Aside from Conn's recent behavior, fleeing the country, he has pleaded guilty to enough criminal financial activity to support permanent disbarment: one count of Criminal Attempt to Make a Gift to Another Person to Contribute to a Candidate on His Behalf, Theft of Government Money, and Paying Illegal Gratuities.
NPR reported on his capture.
Eric Conn, the Kentucky lawyer who defrauded the Social Security system of more than half a billion dollars before fleeing the U.S. in June, has been arrested in Honduras, according to that country's Public Ministry. Wanted by the FBI, he also sent taunting messages while on the lam.
Conn had been under house arrest when he cut off his ankle monitor a month before his sentencing hearing and left it in a backpack along I-75 in Lexington, Ky. He was later traced to New Mexico, where a truck he had been using was found near the border. The FBI says the vehicle had been provided by a co-conspirator.
Conn eventually made it to Honduras, where agents of the Technical Agency for Criminal Investigation arrested him in the northern city La Ceiba, along the Caribbean coast. At the time, he was leaving a restaurant in a shopping center. Honduran officials say Conn is being sent back to the U.S. on Tuesday.
Known as "the E-Man" in splashy ads and billboards, Conn once headed the largest Social Security law firm in Kentucky, promising to help clients get money from the government. But he was actually at the center of a corrupt group that included doctors, two federal administrative law judges and others who conspired to rig Social Security's disability benefit system, authorities said.
"The negative impact of Conn's presence in our community will be felt for generations," FBI Special Agent in Charge Amy S. Hess said this summer. "His flight from prosecution has diminished any legitimacy and integrity he once held as an attorney and officer of the court."
Members of the ring were indicted in April 2016 on federal charges that included conspiracy to commit mail fraud and wire fraud, mail fraud, wire fraud and making false statements. Conn entered a guilty plea in March 2017, agreeing to testify against others. But two months later, he disappeared.
After Conn fled, federal agents spotted him in surveillance video at a gas station and at a Walmart in New Mexico, where one image showed him pushing a bicycle.
From Louisville, Ky., member station WFPL, Eleanor Klibanoff reports that federal charges were recently lodged against Curtis Lee Wyatt, who allegedly "bought Conn a car, tested security protocols at the U.S.-Mexico border so Conn would know what to expect and helped him escape from house arrest."
The Iowa Supreme Court has reversed an order disqualifying retained counsel in a criminal matter.
Carlos Ramon Mulatillo privately retained attorney Steven Gardner to defend him on felony drug charges. Gardner had represented Mulatillo for fifteen months. Less than two weeks before the jury trial was to commence, the State filed additional minutes of testimony listing the name of a confidential informant who would testify against Mulatillo concerning five controlled drug buys he made from Mulatillo. This was the first time Mulatillo and Gardner were informed of the name of the confidential informant and the potential conflict of interest involving this individual. Gardner had previously represented the confidential informant for approximately one month in October 2014 on felony drug charges. Those drug charges led to the confidential informant agreeing to cooperate and assist the State. This cooperation agreement ultimately led to the confidential informant making controlled buys from Mulatillo.
The State moved to disqualify the defense attorney and at the hearing
The only evidence the State provided was hearsay statements from attorney Mitchell claiming Gardner had conversations with the drug task force or former prosecutor about the possibility of Davidson working as a confidential informant. While the district court properly considered these hearsay statements since Gardner never objected to this evidence, these statements did not rise to the level of substantial evidence that would support disqualifying Gardner.
Although the attorney for Davidson claimed Gardner had conversations with the former drug prosecutor about Davidson becoming a confidential informant, there is no further evidence to support this claim. The State did not have the former prosecutor, or any individual from the drug task force, testify about their interactions with Gardner while he was representing Davidson. The hearsay statements from attorney Mitchell alone did not amount to substantial evidence that would outweigh the important interest to Mulatillo in exercising his constitutional right to counsel of his choice. Rather, these statements speak to the speculative nature of the serious potential for an actual conflict of interest.
Most significantly, as in McKinley, the record is bereft of any evidence “tending to establish any confidence or secret learned during the [defense counsel’s] prior representations of [Davidson] on unrelated matters” that could be used against Davidson during cross-examination or to materially benefit Mulatillo, or conversely that could impede Gardner’s cross-examination of Davidson...
In this case, the evidence provided by the State did not rise to the level of substantial evidence that is necessary to prove that Gardner’s continued representation of Mulatillo creates a serious potential for an actual conflict of interest. The district court order disqualifying Gardner, based primarily on speculative evidence of a potential conflict, constitutes an untenable ground for the district court to exercise its discretion.
The New Hampshire Supreme Court Professional Conduct Committee has reprimanded an attorney who had failed to recognize and deal with developing conflicts of interest between three individual and one entity clients.
One of the former clients sued for legal malpractice. The disciplinary matter had been stayed as a result but here was resolved by stipulation while the civil case remains pending.
Fosters.com reported on the underlying representation.
The attorney was retained by Young & Novis Professional Association (Y&N) and its two owners Drs. Moore and Littrell to pursue a claim that their contract with the Wentworth-Douglass Hospital ("WDH") to provide pathology services had been terminated because they had insisted that a security breach that led to possible HIPPA violation be reported to authorities.
WDH advised Y&N to vacate its office at WDH by February 28, 2010.
On February 28, Moore, Littrell and Moore's husband went to the Y& N office at WDN. The purpose was to retrieve business and personal items and Y&N patient files.
They logged onto the WDH computer system. The two doctors had password access authority but Moore's spouse did not. Mr. Moore and Littrell used a "Drive Scrubber" to delete documents.
Another problem arose when Littrell's computer had on it "materials downloaded...including pornography and suggestive correspondence with a woman who was not his wife." He had a greater inducement to quietly settle as a result.
The matter underscores that the duty to monitor for conflicts continues throughout a representation. (Mike Frisch)
The West Virginia Supreme Court of Appeals rejected a Hearing Panel Subcommittee's proposed suspension of one year and ordered a three-year suspension of an attorney.
The attorney was admitted in 1982 and had no prior bar discipline.
The charges involved two matters
Client #1 and Mr. Sirk have been friends for more than fifty years; he previously retained Mr. Sirk to represent him in a variety of legal matters. When Client #1 became the executor of his mother’s estate, he retained Mr. Sirk to represent him. Following the sale of Client #1’s mother’s home, Mr. Sirk opened a trust account at M&T Bank in Keyser, West Virginia, and deposited $30,068 from the sale of the home in August 2013. Client #1 and Mr. Sirk had a verbal agreement at the time the account was opened that Mr. Sirk could borrow from this account as long as he repaid the money. However, they never discussed the specific terms of this agreement, Mr. Sirk did not advise Client #1 to seek legal counsel, nor did Client #1 provide written consent for Mr. Sirk to withdraw funds.
Client #1 visited the bank in January 2014 and inquired about the balance of this trust account. He was shocked to learn that Mr. Sirk had withdrawn approximately $16,800. After leaving the bank, Client #1 went to Mr. Sirk’s law office to confront him. Mr. Sirk stated that he would repay the money, but it would take some time because he was experiencing financial problems and would need to take a second mortgage out on his home. Mr Sirk explained that he was dealing with personal problems, including children battling drug addictions. In July 2014, Mr. Sirk returned $16,000 to Client #1 and approximately a month later, he paid the remaining $800.
At the hearing held before the HPS, Mr. Sirk expressed remorse and apologized to Client #1. Mr. Sirk explained that he was suffering severe financial problems when he was supporting his grown son who is a heroin addict and was trying to secure drug rehabilitation. During this time, he learned that his other son was also a drug addict. Mr. Sirk testified that he was also caring for his elderly parents who were both very ill and dealing with his own personal health problems. Mr. Sirk stated that he turned to gambling and contemplated divorce.
The second matter involved neglect of a bankruptcy client.
[The Office of Disciplinary Counsel] initially urged this Court to accept the HPS’s recommendations, including the one-year suspension. Ultimately, however, ODC maintained that Mr. Sirk engaged in additional misconduct after the HPS completed its report and argued that his law license should be suspended for three years in addition to other sanctions. ODC asserted that Mr. Sirk violated duties to his clients, to the public, to the legal system, and to fellow members of the legal profession.
Further, in ODC’s motion to consider an additional aggravating factor and to enhance the sanctions against Mr. Sirk, the evidence shows that Mr. Sirk ignored a directive of this Court when he failed to file a responsive brief. Not only does this behavior evince a disturbing pattern of misconduct, but it also shows a failure to obey an obligation imposed by a tribunal...
The HPS found the remorse shown by Mr. Sirk constituted a mitigating factor as well as the absence of a prior disciplinary record, and his personal/emotional problems. Conversely, several aggravating factors were also present including Mr. Sirk’s dishonest or selfish motive, pattern of misconduct, multiple offenses, and his substantial experience in the practice of law. Courts have applied the aggravating factor of dishonest or selfish motives in cases where the lawyer intends to benefit financially from prohibited transactions. “For example, an attorney who solicits loans from a client because he is unable to find funding elsewhere acts selfishly because the attorney seeks to benefit directly from the client.” In re Disciplinary Proceeding Against Trejo, 185 P.3d 1160, 1174 (Wash. 2008).
There is no “magic formula” for this Court to determine how to weigh the host of mitigating and aggravating circumstances to arrive at an appropriate sanction; each case presents different circumstances that must be weighed against the nature and gravity of the lawyer’s misconduct. Considering all the relevant factors in this case, we conclude that the one-year suspension recommendation submitted by the HPS is too lenient a punishment for serious behavior that has become a pattern of continued wrongdoing.
...we impose a three-year suspension on Mr. Sirk’s law license. Further, we adopt the remaining recommendations made to this Court by the HPS. We believe these sanctions will accomplish the goals of our disciplinary system by punishing Mr. Sirk, restoring public confidence in the ethical standards of our profession and serving as a deterrent to other members of the State Bar.