Saturday, March 31, 2018

Arrested Development

The Virginia State Bar Disciplinary Board has imposed a reciprocal nine-month suspension based on a like sanction ordered by the South Carolina Supreme Court.

From the consent to discipline in South Carolina

Lawyer was arrested on August 16, 2016 and charged with Voyeurism, in violation of S.C. Cwte 16-17-0470(B), While in a grocery store, Lawyer used his cell phone to take a photograph up the victim's skirt. 

From the South Carolina Supreme Court

At his family's insistence, he scheduled himself to be checked in to an inpatient treatment facility. However, on the day he was scheduled to report to the treatment facility, he was charged with the crime that is the basis of this disciplinary action. Respondent was highly intoxicated at the time of the incident and when he checked in to the treatment facility later that day...

Respondent notes that in nearly thirty-four years of practice as an assistant solicitor and a private practitioner, no client or any other party has lodged any type of complaint against him relating to his work.

In 1997, this Court imposed a four month suspension on respondent after he pled guilty to simple assault and battery for pulling down a woman's bathing suit while she was sunbathing at the beach in 1994...The opinion notes respondent had been involved in a similar incident in 1989, but was not prosecuted. Respondent covered his face in both incidents and fled when the women put up a struggle. He had no prior connections with either woman. In mitigation, respondent offered the testimony of a psychiatrist who testified respondent was suffering from nan adjustment disorder with mixed emotions and problems with conduct" The psychiatrist opined a "psychosexual development arrest" caused the assaults. It was also the psychiatrists opinion respondent was "developmentally arrested at the adolescent stage and his acts showed the type of sexually immature behavior normally associated with that stage. " The psychiatrist believed respondent's developmental problems occurred because of family problems when respondent was growing up, that the acts would not recur, and that respondent was responding well to treatment and counseling.

(Mike Frisch)

March 31, 2018 in Bar Discipline & Process | Permalink | Comments (1)

To Err Is Human

A Pennsylvania disbarment was ratcheted down to a one-year suspension with fitness by the New Jersey Supreme Court.

As is the custom, the court followed the recommendation of its Disciplinary Review Board.

The DRB rejected some findings of ethical violations admitted in the Pennsylvania case

The charges against respondent arose out of his participation in a mortgage debt relief scheme. He agreed to disbarment in Pennsylvania, after [ethics charges alleging numerous violations had been filed]

Background

The charges arose out of his association  with "A," a nonlawyer, whose Ohio real estate license had been revoked in 2009, a fact unknown to respondent.

When respondent was admitted to the Pennsylvania bar, in January 2012, he was twenty-six years old, unemployed, and had accumulated more than $230,000 in student loan debt. In August 2013, respondent answered a Craigslist advertisement seeking an "associate attorney." On an unidentified date, he was hired by Williams Legal Group (WLG), a law firm affiliated with "A," which held itself out as a national mortgage debt relief entity. WLG operated in accordance with a business model, adopted and marketed by "A."

After respondent was hired by WLG, he opened his own law practice, under the name Domenick Legal Group, and operated according to "A"’s business model. Respondent "mostly" represented clients who resided, and whose realty was located, in states other than Pennsylvania and and New Jersey, the only states  in which he was admitted to practice law.

The Pennsylvania disciplinary case alleged that the attorney had harmed 34 clients in 13 states and collected over $500,000 in illegal or excessive fees. He was found to have engaged in unauthorized practice of law in multiple jurisdictions, charged and collected illegal and/or excessive fees and failed to return unearned fees.

On the plus side

At some point, respondent understood "the situation in which he had placed himself," which caused feelings of remorse and depression. In the fall of 2015, he obtained assistance from the Lawyers Concerned for Lawyers program. Toward the end of 2015, respondent took steps to extricate himself from his association with "A."

However, he failed to appear for argument before the New Jersey Board. 

 The DRB on reciprocal discipline

Although we agree with many of the conclusions reached by the Pennsylvania disciplinary authorities, because the allegations of the Pennsylvania ethics complaint lack detail, we do not find that the record supports, to a clear and convincing standard, that respondent violated RPC 1.5(a) or RPC 1.15(b)...

As to fees

Although the complaint suggests that the fees collected by respondent were unreasonable, the allegations are insufficient to make that finding.

...with respect to those clients, in the absence of an analysis under RPC 1.5(a), there is simply no context for determining whether the fees charged were unreasonable. Thus, we dismiss that charge.

Perhaps the allegations lack detail and/or analysis because the accused attorney consented to disbarment?

Unlike Pennsylvania, we find that respondent should not be disbarred in New Jersey. The crux of his misconduct was the failure to return unearned fees to his clients for whom he had performed no services. In Pennsylvania, that conduct clearly warrants disbarment under its RPC 1.15(i)...

New Jersey RPC 1.15, which is vastly different from  Pennsylvania’s, does not have a paragraph (i), and no other provision of the Rule mirrors Pennsylvania RPC 1.15(i). Indeed, a New Jersey attorney is not required to safeguard an unearned fee in the trust account.

While I can see that the Rule 1.15(i) distinction is a valid basis to find that some of the admitted Pennsylvania misconduct is not misconduct in New Jersey, I read the DRB to minimize the serious misconduct that remains. 

And, it should be noted, the "vast difference" relied on here is one that allows a lawyer to treat unearned fees as his own on receipt.

This reflects a distinctly lawyer-friendly departure from ABA Model Rule 1.15

(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

From the New York Times in 2003. 

Mr. [Mark] Armitage, who is associate director of the legal disciplinary board in Michigan, said New Jersey's reputation for stringent discipline comes from its random financial audits and harsh penalties. He said New Jersey was one of only 10 states that permanently disbar lawyers; most others allow offenders to apply for reinstatement.

''New Jersey has the reputation of being very, very tough,'' he said.

A scholarly article needs to be written about how New Jersey went from a beacon of vigorous regulation to whatever it is now. (Mike Frisch)

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

Friday, March 30, 2018

After 17 Years, Attorney's Unauthorized Practice Contention "Incredible And Unavailing"

An interim suspension will remain in effect per this order of the New York Appellate Division for the First Judicial Department

By order of October 21, 2010, this Court suspended respondent from the practice of law, until further order of this Court, as part of a mass suspension proceeding, for failure to file attorney registration statements and pay biennial registration fees in violation of Judiciary Law § 468-a (Matter of Attorneys Who Are in Violation of Judiciary Law § 468-a, 79 AD3d 81 [1st Dept 2010]). By order of May 27, 2010, this Court had authorized service of the notice of petition to suspend by publication in the New York Law Journal for five consecutive days commencing on June 8, 2010. The complete list of suspended attorneys was also posted on the websites of this Court and the New York Law Journal. According to OCA records, respondent cured his default on or about June 27, 2017, however, he did not move for reinstatement and, thus, remains suspended.

The Attorney Grievance Committee had sought immediate disbarment

Respondent states that in 2017 another attorney brought it to his attention that he was suspended. That attorney concomitantly brought that fact to the attention of the AGC. When contacted by the AGC, respondent stated that while he suspected he might not be in "good standing," he did not realize that he had been suspended. The AGC then commenced an investigation.

In his June 2017 answer to the complaint, respondent acknowledged that he continued to practice law after his suspension but claimed that he has not intentionally engaged in the unauthorized practice of law because he was unaware of his suspension. Respondent explained that he failed to renew his registration and stopped meeting his CLE requirements around 2001 because he was engaged in major litigation and then confronted with stressors in both his professional and personal life. Respondent further stated that part of the reason he did not renew his biennial registration was that he was unable to complete his CLE requirements. Initially, respondent believed that he would be able to catch-up on his CLE and registration obligations, but as more time passed the task became overwhelming.

Respondent also explained that he never subscribed to the New York Law Journal so he did not see the notice of petition to suspend which was published for five days in June 2010. In addition, respondent claimed that in the fall of 2010, he moved from both his registered home and business addresses, and admittedly did not update the changes with OCA. Respondent believed that any notice of his suspension sent by the AGC to either of his previous addresses was not forwarded to him by the subsequent occupants or the Post Office. Upon learning of his suspension in April 2017, respondent took immediate steps to fulfill his registration obligations and address his suspension. For instance, after his violation of the suspension order was reported to the AGC, respondent completed 231.5 CLE credits and paid his delinquent registration fees.

The AGC correctly argues that after 17 years of failing to re-register or complete the required CLE credits it is incredible that respondent thought his license to practice law would remain valid. Accordingly, the AGC recommends immediate disbarment or, in the alternative, an interim suspension.

Respondent argues that he did not intentionally engage in the unlawful practice of law, because he never knew he had been suspended. He is contrite and admits that he should have looked into the consequences of not registering for such a long time. After learning of his suspension respondent did suspend his law practice, and took steps to pay back his registration [*2]fees and become current with his CLE obligations. Although respondent was willfully ignorant in his registration responsibilities, this is not a case where any clients, or opponents, were harmed by respondent's conduct. Since learning of his suspension, he has brought himself into compliance.

Respondent's contention that he was unaware of his suspension is both incredible and unavailing. In Matter of Rosenbaum, (149 AD3d 270 [1st Dept 2017]) the respondent, who had been suspended for failure to register and nonpayment of fees, similarly claimed ignorance of his suspension for several years, although he, unlike respondent in the instant matter, admittedly continued to practice law "a little" even after learning of his suspension. In Rosenbaum, this Court denied the AGC's request for summary disbarment but granted the Committee's alternate request to continue respondent's suspension until further order of the Court (149 AD3d at 274).

AGC will presumably continue its investigation of respondent and if warranted, file formal charges. Additionally, if respondent engages in the unauthorized practice of law while suspended, the AGC could renew its motion for summary disbarment.

(Mike Frisch)

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

The Fix

A ticket-fixing former judge was reciprocally suspended by the New York Appellate Division for the First Judicial Department based on a New Jersey sanction

Respondent was suspended for three months in New Jersey based upon misconduct committed while he was a part-time Municipal Court Judge in Jersey City (2004-2007) during which time he submitted parking and traffic tickets issued to him and members of his family to his judicial colleagues for improper adjudication.

Respondent stipulated to facts relating to his involvement in ticket fixing. In 2005, respondent received a ticket for debris left at his law office in Jersey City. Respondent knew that he could not dismiss or adjudicate his own ticket so he brought it to his supervising judge. Respondent represented to New Jersey disciplinary authorities that the perception in the Jersey City Municipal Court was that you could not dismiss your own ticket but you could give it to another judge. The Judge adjudicated the ticket in chambers and respondent paid a $50 fine and $20 court costs. Respondent considered this adjudication to be a "test run" and assumed that other tickets could be handled in similar fashion.

Respondent also presented parking tickets issued to him and his wife to his colleague (who shared law office space with respondent, did per diem work for him for which they were paid, and was listed as "of counsel"). The colleague adjudicated the matters, finding respondent and his wife guilty, waiving the $42 fine for both tickets, and imposing $30 in court costs notwithstanding that neither respondent nor his wife formally appeared in court, nor had they pled guilty by mail as provided for in the court rules. The $30 in assessed costs was paid to the court.

Respondent also submitted a traffic ticket issued to his son in 2004 for failure to observe a traffic control device, a moving violation, to this same colleague who amended the ticket to delaying traffic, a no-point violation, and imposed a $25 fine and $25 in court costs. Respondent's son was found guilty of the amended offense notwithstanding he never formally appeared in the courtroom, but was standing outside in the hallway, and did not enter a guilty plea in a manner prescribed by the court rules. Further, no factual basis for the amended charge was placed on the record and neither the municipal prosecutor nor the police officer who issued the ticket were given notice or opportunity to be heard on the matter. The $50 fine was paid to the court.

In 2007, in response to rumors of improper ticket handling respondent asked an administrative clerk about vacating the tickets adjudicated. Respondent asserted that he was prepared to pay the maximum fine for each of the tickets but the clerk informed him that a ticket could not be vacated once it was entered "in the system." At or around this time, respondent and others became the subjects of investigations conducted by the court system and the New Jersey Attorney General's Office.

On October 3, 2007, respondent voluntarily took an unpaid leave of absence from his judicial position. Thereafter, on or about October 7, 2007, respondent was criminally charged with official misconduct in violation of New Jersey Statutes Annotated 2C:30-2(a). On August 28, 2009, the court granted respondent's application for admission to New Jersey's Pre-Trial Intervention (PTI) program for a period of two years as a condition of which he admitted to his mishandling the traffic tickets at issue and agreed never to hold judicial office again in the future. Respondent successfully completed the PTI program and the charge against him was dismissed.

In 2014, the New Jersey Office of Attorney Ethics (OAE) filed a formal disciplinary complaint against respondent charging him with violations of New Jersey Rules of Professional Conduct (NJRPC) 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, specifically, official misconduct [*3]under NJ Stat Ann 2C:30-2[a]) and NJRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Respondent, represented by counsel, admitted the material facts alleged by the OAE and admitted the NJRPC 8.4(d) charge.

In July 2015, following a hearing on the NJRPC 8.4(b) charge and appropriate sanction to impose, a District Ethics Committee (DEC) issued a report in which it sustained both of the alleged disciplinary violations and recommended respondent be suspended for three months, one month of which should be suspended.

Mitigation

In mitigation, the DEC considered respondent's past accomplishments (which included his prior career as a Roman Catholic priest), his pro bono and civic work for the Filipino community, his character evidence, the fact that seven years had passed since respondent was first served with the OAE's grievance against him, he cooperated with law enforcement and the OAE, he had no prior disciplinary history, and his sincere remorse.

Sanction

Here, the New Jersey Supreme Court imposed a three-month suspension which is in general accord with New York precedent involving arguably similar misconduct .

(Mike Frisch)

March 30, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

When A Hug Is More Than A Hug

The Iowa Supreme Court affirmed the conviction of a teacher for prohibited sexual conduct

This case requires us to determine whether hugs between a school employee and a student can constitute prohibited “sexual conduct” under Iowa Code section 709.15(3)(a) (2015). Wickes appeals his conviction on one count of sexual exploitation by a school employee under Iowa Code sections 709.15(3)(a)(1) and 709.15(5)(a). Wickes challenges the district court findings that his hugs with a student constituted “sexual conduct” under Iowa Code section 709.15(3)(a)(2) and that the State provided sufficient evidence to show he engaged in a pattern, practice, or scheme of conduct to engage in sexual conduct with a student. Wickes also forwards other claims on appeal. For the reasons set forth below, we affirm the judgment and sentence of the district court.

The defendant taught high school social studies and communicated with the student on Facebook messenger

Between August 21 and October 5, Wickes and A.S. exchanged approximately 638 pages of messages on Facebook with one another, with many of these pages containing multiple exchanges between them per page. These daily messages took place at all hours of the day, sometimes beginning early in the morning and often ending early the next morning. As their relationship progressed, Wickes and A.S. began to openly share intimate details of their lives. Wickes frequently discussed his marital issues with A.S., including his sexual frustrations with his wife. They also discussed his ultimate decision to leave his wife and children.

Throughout these discussions, Wickes made clear that part of his marital problems stemmed from his desire for more cuddling and physical contact with his wife. For example, Wickes stated, “[H]ugs, cuddling and laying together are so important to me.” Wickes also told A.S. that he had previously complained to his wife about the lack of affection and sexual intimacy in their marriage. He made statements such as “I’m a guy that loves to cuddle and show affection”; “I don’t need to be seduced after this long of a ‘dry period’ ”; and “I NEED AFFECTION, I’m not saying the booty kind . . . well that too . . . but I freaking am crazy to just feel like [my wife] would like to hold my hand or sit beside saying, “[Y]ou’re not crazy for wanting those things. It’s part of a relationship. It’s a big part.” Wickes replied, “Could you turn 30 tomorrow lol.”

Further, Wickes used these discussions to flirt with and encourage A.S. into a more intimate relationship with him. Initially, he encouraged A.S. to rely on him emotionally. After Wickes reviewed A.S.’s paper describing her move from the home of one parent to the other, Wickes made statements such as “I didn’t know much about why you left. Sounds like it was pretty rough. You should share more with me sometimes if you ever want to”; “Hugs and high fives Monday”; and “Don’t hold it all in. That just leads to more depression and anxiety. I’m always available.” Wickes subsequently continued to encourage A.S. to rely on him for support in the form of conversations and hugging. For example, when A.S. said, “I know personally I tend to shut down after I open up to someone,” Wickes responded, “So can I expect you to shut down and pull away now? Better not.”

A.S. and Wickes would both message each other asking about when they would get their hugs from one another. The pair engaged in hugs on an almost daily basis. In addition to their conversations and testimony about the hugs, the evidence of these interactions includes two photographs of Wickes and A.S. embracing—one at the Camanche High School prehomecoming bonfire and one at the homecoming dance. From September 16 until his last Facebook conversation with A.S. on October 5, Wickes made a plethora of statements to A.S. about how sexually attractive he found her and his desire to be in a romantic relationship with her. For example, on September 20, Wickes messaged A.S., “I’m going to cross over to the creeper side a moment and tell you. You are hot. And pretty[;] kind of a rare combo.” This comment came after Wickes had recently seen A.S. at Walmart, they had hugged, and he followed up on their in-person exchange by telling A.S., “I’m glad I just got to touch you[.] OMG[;] touch hug you lmfao.”

The messaging continued and

On October 4, Wickes separated from his wife and moved away from the marital residence. Later that night, Wickes and A.S. met at Walmart to give each other a hug. Following their physical encounter, they continued to converse with one another that evening on Facebook. Wickes mentioned to A.S. that she left him with a “wonderful perfume smell.” Wickes told A.S. that he was jealous of her boyfriend because “He’s got a shot with my perfect person.” He further told A.S., “I’ve been walking alone for so long helping who I could along the way, to realize I was never going to meet someone that saw me. And then bam it’s you.” The two conversed about their romantic feelings for one another, and Wickes posed A.S. a “hypothetical” question. He asked her if she would like to take their relationship further despite their age gap after she graduated and turned eighteen if his marriage did not work out. He also asked her whether she could “really be happy with a guy that’s 36[,] divorced, and has 3 kids.” A.S. replied, “Honestly yes. There’s such a connection. And I love kids.” Soon after, Wickes told A.S., “I’ll just say it. I love you. I never meant for this [to] happen[.] [I]t just did.” After A.S. acknowledged she felt the same way, Wickes told her, “I’ve only hugged you and chatted with you and I feel completely tied to you. When my phone light blinks green[,] I know it’s a message from you and I get so excited.”

This conversation continued early into the next morning, and it became increasingly sexual. Wickes told A.S., “My fantasy was laying in your lap listening to [music.]” After A.S. told Wickes about how she liked to cuddle, Wickes responded, “Booty touches me and it be [M]arvin [G]aye . . . for all of 5 seconds at this point.” He also explained to A.S. that his wife had previously told him “she wasn’t enjoying [sex] because . . . she didn’t get what she needed.” He declared that the “lack of closeness sure does kill the [sex] drive.” Subsequently, Wickes described how he liked to give sensual back rubs by “lightly caressing with finger tips and . . . spelling out words.” He told A.S. that he had “magical fingers,” and that he would “trac[e] along the back side of the leg and circles around the knee.” Following this exchange, Wickes asked A.S., “Do you delete these messages? I think I’d be killed if your dad found them.”

At that point, the family became aware of the situation

On October 6, the principal and school superintendent met with Wickes, who told them his conversations with A.S. had become flirty and turned into “conversations like boyfriend and girlfriend would have.” Wickes told them about his hugs with A.S., as well as his out-of-school encounters with her. However, the principal and superintendent were unable to view the Facebook messages because Wickes told them he had deleted them and his smart phone had been destroyed. The school district placed Wickes on administrative leave. Wickes resigned from his teaching position on November 13.

He was convicted at a bench trial.

The court

Of critical importance in our analysis is the context and circumstances that surrounded the physical contact—the hugs—that are at issue here. This context begins with Wickes initiating the Facebook messaging with A.S. It continues with the scenario of a 36-year-old teacher incessantly messaging a 17-year-old female student to describe intimate details of his marriage and his sexual frustrations. This context informs our analysis of what resulted in daily or more often hugs between Wickes and A.S. It is important to note that nothing should prohibit teachers from hugging students for reassurance, comfort, or in congratulation without putting themselves at risk of being charged with the crime of sexual exploitation. But on this record, it is clear from the voluminous messages and their content discussing the hugs and his attraction to A.S., Wickes’s intention with these hugs went beyond mere reassurance and support for A.S. Rather, the abundance of messages to A.S. about how attractive he found her, his desire to be in a more intimate relationship with her, and how he was in love with her, linked his sexual desire toward A.S. with the hugs they exchanged.

Likewise, the photos of A.S. and Wickes hugging at the school bonfire and homecoming dance show that these hugs went beyond simple, brief hugs for reassurance or comfort. These photos show the pair in a close embrace, not a mere hug. For example, in one of the homecoming photos, A.S. and Wickes are engaged in a full-frontal hug in which the pair are making chest-to-chest contact, A.S. has her arms wrapped around Wickes’ neck, and Wickes has his arms fully wrapped around A.S.’s waist as they pose for the photo. Consequently, in the context of the multiple messages with A.S. as a whole, and in combination with the hugging, there is sufficient evidence that the hugs constituted sexual conduct with A.S. as opposed to an ordinary hug between a teacher and student intended to comfort and reassure the student...

The ever-changing technology that gives school employees the opportunity to easily communicate with students through mediums that allow for more discreet communications—like the use of Facebook Messenger in this case—presents school employees with a legion of evolving methods by which they can potentially sexually exploit students. The legislature rightly acknowledged as much by declining to limit its definition of “sexual conduct” to specific conduct and, instead, sought to include those ways in which a school employee sexually exploits a student by causing them physical or nonphysical harm.

The court rejected other claims and ipheld the five-year prison sentence.

The Clinton Herald reported on the case. (Mike Frisch)

March 30, 2018 | Permalink | Comments (0)

A Cause However Noble

The Wisconsin Supreme Court imposed a one-year suspension of an attorney admitted in 1975 for frivolous litigation connected to the foreclosure of her own property.

The allegations of misconduct in this case arise out of a foreclosure action in the Dane County circuit court against a residential property owned by Attorney Nora (the foreclosure action) and three subsequent civil actions filed by Attorney Nora against the circuit court judge and opposing counsel involved in the foreclosure action.

The court rejected claims of due process violations and bias of the referee.

Sanction

her misconduct in this case is aggravated by the fact that it was not an isolated occurrence, but rather was a pattern of multiple instances of misconduct that stretched over a substantial period of time. In addition, her misconduct was not based on her failure to do something, but on her affirmative and aggressive attempts to use the judicial system to obstruct the foreclosure of her property and to harass those she apparently deemed responsible for the loss of that property. She has offered no basis for this court to conclude that she recognizes her misconduct or that she would change her tactics in similar circumstances in the future. Accordingly, we conclude that the misconduct at issue here requires a more severe level of discipline than we imposed on Attorney Widule. We determine that a one-year suspension of Attorney Nora's license to practice law in Wisconsin is necessary and appropriate under these circumstances.

Finally, it seems apparent that Attorney Nora believes that she must personally fight abuses or improprieties in the real estate lending industry. A lawyer's fight for any cause, however noble one might think it to be, must be conducted within the ethical rules that govern the lawyer's conduct. Attorney Nora must demonstrate that she understands this principle and can conform her conduct to the applicable ethical rules before she may return to the practice of law in this state.

She had been suspended for 30 days in 1993 as reciprocal discipline for a sanction imposed by the Minnesota Supreme Court. (Mike Frisch)

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

Teachers Photos Of Students A Crime

The Maryland Court of Special Appeals affirmed a conviction of a teacher 

In the context of this case, where appellant was a teacher taking multiple photos of a student during school, and the content of the photos, depicting primarily the buttocks of a student bending over what appears to be a table, taken with evidence of photos appellant took depicting only a “young woman’s legs and buttocks,” a rational trier of fact could conclude that appellant’s actions in taking these photos were for his own benefit and constituted exploitation of a sexual nature.

Appellant’s action, in placing his phone underneath his student’s skirt and taking a picture, was sufficient for a rational trier of fact to find that appellant engaged in an act that involved sexual exploitation at the time he had responsibility for the student’s supervision.

The evidence

On October 2, 2015, appellant, a science teacher at a Montgomery County high  school, administered a makeup exam to N.S., one of his students. As part of the accommodations for her learning disability, N.S. took a written examination and then had the questions administered orally.

After completing the written examination, N.S. went to the front of the classroom, where appellant was seated in a roller chair, to go over the exam orally. N.S. was wearing a skirt, and she stood approximately 18 inches from appellant.

Initially, appellant was facing his computer and using his iPhone as he conducted the examination orally. Toward the end of the exam, however, appellant turned to face N.S. and “leaned forward like on his knees,” with his phone in his hand. The phone was facing downward with the screen toward the floor and the camera facing upward.

N.S. testified that, after leaning forward, appellant put the phone “almost underneath [N.S.’] skirt” and “started clicking the volume button[,] which takes pictures” when the phone is positioned in the manner described. N.S. believed appellant was taking pictures by “clicking the volume button” because she had taken pictures in that same manner herself.

At that point, N.S. stepped back and crossed her legs while she finished the oral review of the examination. After completing the examination, N.S. left appellant’s classroom and met two of her friends, who were waiting outside of the classroom. N.S. told these two friends about the pictures appellant was taking during the examination. N.S. also told her father and mother. N.S.’ parents called the school and scheduled a meeting with the principal for the following Monday.

N.S. also filed a complaint with Child Protective Services (“CPS”) for Montgomery County, which was forwarded to the Montgomery County Police Department.

The investigator asked and was given permission to look at his phone

As Detective Giovacchini looked, she noticed that there were pictures of adolescent females in the classroom. Specifically, she observed “pictures of butts [in] what appeared to be the classroom setting.” Detective Giovacchini did not see a picture of N.S. or the clothes she described wearing on the date of the incident.

A search warrant led to charges involving other students

State’s Exhibit No. 14 depicted images of R.K. standing in a classroom with her arms outstretched and cleavage exposed.

He was acquitted of the R.K. charges.

Count III involved images from appellant’s phone, shown in State’s Exhibit Nos. 8 and 15, which the parties stipulated were of the minor-victim, M.S., who was appellant’s student during the fall of 2015. These exhibits depicted images of M.S.’ buttocks, taken in the classroom setting as M.S. was bending over.

Guilty

Count IV involved images from appellant’s phone, shown in the State’s Exhibit No. 13, which the parties stipulated were of the minor-victim, G.E., who was appellant’s student during the fall of 2015. State’s Exhibit No. 13 depicted images, taken from behind, of G.E. standing in a classroom.

Not guilty

Multiple images of M.S., R.K., and G.E. were admitted into evidence. Additionally,  the court admitted photos of unknown females, which the court found relevant to appellant’s intent. The court described one photo as one where the “whole photo” was depicting “a girl’s buttocks.” It stated that there was “no legitimate student activity going on,” but rather, it was “just a girl bending over.”

The court here on Count III

In assessing the sufficiency of evidence to support appellant’s conviction for sexual abuse of M.S., appellant’s framing of the issue, whether “[t]he mere taking of a picture of a fully clothed individual” is sufficient to prove “sexual exploitation,” is too narrow. Rather, our analysis requires consideration of all the circumstances, including the context in which the pictures were taken, i.e., appellant was a high school teacher and the minor victim, M.S., was his student, and the content of the pictures, which the circuit court accurately described as multiple images of M.S. “bending over, taking the picture from the back to the virtual exclusion of every other part of her body.” The circuit court, in assessing the totality of the circumstances, concluded that this “was not an accident,” particularly when considered with State’s Exhibit 20, which included photos of another young woman, depicting only the “young woman’s legs and buttocks.” Viewing all of the evidence, the court found that “these pictures were taken to memorialize [M.S.’] backside,” and it determined that the evidence was sufficient to show that appellant’s actions were exploitative. We agree...

Based on the context of the actions, a teacher taking multiple photos of a student during school, and the content of the photos, which depicted primarily the buttocks of a student bending over what appears to be a table, as well as other photos depicting only a “young woman’s legs and buttocks,” a rational trier of fact could conclude that appellant’s actions in taking these photos were for his own benefit and constituted exploitation of a sexual nature.

The N.S. photo was not found but the conviction on that count was nonetheless sustained

The court ultimately found that the lack of a photo, which could be explained for various reasons, did not negate a finding of exploitation. That determination was a correct statement of the law.

...appellant’s action, in placing his phone underneath his student’s skirt and taking a picture, was sufficient for a rational trier of fact to find that appellant engaged in an act that involved sexual exploitation of N.S. at the time he had responsibility for her supervision. The evidence was sufficient to support appellant’s conviction of sexual abuse of N.S.

(Mike Frisch)

March 30, 2018 | Permalink | Comments (0)

Thursday, March 29, 2018

D.C. Board Provides Access To Oral Arguments

A move toward transparency by the District of Columbia Board on Professional Responsibility is always welcome

In an effort to increase public access to oral arguments before the Board, effective immediately, live streaming audio of Board oral arguments that are otherwise open to the public will be made available via a link accessible on the Board's homepage. 

Click here to read the Board's Administrative Order.

Click here to access the Board's list of upcoming arguments and the Board's oral argument link.

I will be their biggest fan. (Mike Frisch)

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

Better Late Than Never

The South Carolina Supreme Court ordered a three-year defininite suspension of an attorney for client-related misconduct exacerbated by persistent failures to cooperate.

The court took an unusual step 

This matter was initially scheduled for oral argument before this Court on September 6, 2017; however, the Court became concerned about Respondent's mental health. We therefore continued the hearing and appointed Lance S. Boozer as guardian ad litem to represent Respondent's interests.

The hearing was reconvened on March 5, 2018. At the outset of the hearing, the guardian ad litem explained to the Court that since being appointed, he had made fourteen separate attempts to contact Respondent via multiple methods of communication; however, Respondent never answered or responded to any of these attempts. Nevertheless, Respondent unexpectedly appeared at the hearing mere seconds before it began; therefore, the guardian ad litem requested, and we permitted, a brief recess for Respondent and the guardian ad litem to confer. Thereafter, the Members of the Court questioned Respondent extensively. During this colloquy, Respondent indicated that he continued to hold stable employment, supported himself, and took medication to assist him in his daily life. After this careful examination, we concluded Respondent was competent to participate in the proceeding.

In addressing the Court, Respondent acknowledged his persistent failure to respond to disciplinary counsel, the guardian ad litem, and this Court, as well as his failure to participate or cooperate in the disciplinary process. Although acknowledging these failures, Respondent contended they were not willful, attributing them to his numerous documented mental health issues.

Sanction

Although we are sympathetic to Respondent's substantial, well-documented mental health issues, "we must weigh this sympathy against our duty to protect the public from lawyers who may lack the present ability to adequately represent their clients in the courts of this State." In re Longtin, 393 S.C. 368, 380, 713 S.E.2d 297, 303 (2011). Therefore, in light of the seriousness and extent of Respondent's misconduct, we find the appropriate sanction is definite suspension for a period of three years from the date of this opinion.

A panel had recommended disbarment. (Mike Frisch)

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

Wednesday, March 28, 2018

Illinois Bar: False Explanation For LSAT Score Got Applicant Into University Of Chicago Law School

The Illinois Administrator has charged an attorney with procuring admission to the University of Chicago Law School by false statements

In October, 2005, Respondent registered to take the Law School Admission Test ("LSAT") but cancelled taking the test. In December, 2005, Respondent took the LSAT and scored 158. In September, 2006, Respondent retook the LSAT and scored 173.

In late 2005, Respondent applied for admission to the University of Chicago Law School, but was denied admission to the 2006 entering class.

On or about December 4, 2006, Respondent submitted a second application for admission to the juris doctor ("JD") program at the University of Chicago Law School. The application requested that Respondent submit, among other things, a resume and candidate statement as part of the application process. Respondent submitted his personal statement and an addendum which purportedly addressed gaps in Respondent’s academic record.

In his personal statement addendum, Respondent stated that in 1999 he had been diagnosed with a leiomyosarcoma (a form of stomach cancer) that he had undergone four separate surgeries to have tumors removed from his stomach, as well as radiation therapy and what he referred to as "countless" minor procedures to stop gastric bleeding. Respondent stated that the disease delayed completion of his MA degree, stalled work in the McGill University Ph.D program, and forced his withdrawal from the University of Michigan, where he had taken courses as a visiting scholar toward completion of a doctoral degree.

In his personal statement addendum, Respondent further stated that although he had just undergone surgery in September, 2005 and was still receiving radiation therapy, he had sat for the October and December 2005 LSAT exams. Respondent explained that he was not healthy enough to have sat for the exams, but that in January, 2006, for the first time in six years, Respondent had been given a clean bill of health by his oncologist. As a result, he scored well on the LSAT, with a score of 173, and was finishing course work at the University of Michigan.

Respondent’s statements that he had been diagnosed with and received treatment for leiomyosarcoma were false.

Respondent knew the statements that he had been diagnosed with and received treatment for leimoyosarcoma were false because at no time prior to submission of his application to the law school had Respondent been diagnosed with or received treatment for leiomyosarcoma or any other cancer, did not have an illness that affected his LSAT performance, and did not take the LSAT exam in October, 2005.

At the time Respondent submitted the false information in his application for admission to the University of Chicago Law School, Respondent knew the information was false and intended to mislead the law school in order to advance his chances for admission to the Law School.

Based upon Respondent’s false application to the University of Chicago Law School, Respondent was admitted to the school. At no time prior to the time he commenced his studies or since completion of his studies at the Law School did Respondent amend his application to provide truthful information to the Law School.

The complaint also charges dishonesty in his bar admission (by failing to disclose the above), in two matters before courts and with false statements in connection with the bar investigation.

In one matter, he represented a plaintiff in federal court and it is alleged

On December 15, 2015, Respondent sent an email to Assistant United States Attorney (AUSA) Gerard Brost, who represented the defendants in the Sulemani case, describing Respondent’s intention to file a motion for an extension of time to complete fact discovery, stating in part the following:

"...I know we had a lengthy fact discovery period in this case to begin with but I have been away from the office for most of the 4 months dealing with a serious medical issue (having tumors removed from my abdomen and stomach).

Respondent’s statement to AUSA Brost...that he had been away from the office for most of the 4 months dealing with a serious medical issue involving the removal of tumors from his abdomen and stomach was false.

Respondent knew the statement...that he had been away from the office for most of the 4 months dealing with a serious medical issue involving the removal of tumors from his abdomen and stomach was false because Respondent was not ill with a serious medical issue involving removal of tumors from his abdomen.

In the other matter, he represented a plaintiff in a civil rights case and allegedly shared his disease

On July 25, 2016 at 9:45 a.m., Respondent sent an email to AUSA Brock, and copied to AUSA Hancock, the following message related to Respondent’s purported reason for requesting an extension to complete discovery in the Harris case:

"Yes, all went well. Thanks so much for asking. He has leiomyosarcoma, a form of stomach cancer, and had to have a small portion of his stomach and GI tract removed. It sounds terrible but apparently it is a rare but also highly treatable disease. My fiance and I have fostered kids on and off for the last 5 or so years. The only downside is that these incredible kids are often in this situation in the first place because they have one or more serious illnesses/conditions. I normally wouldn’t share such personal information but I really do feel so grateful for yours and Gina’s support last week and think it’s important that you know what it actually meant to me."

Respondent’s statements to AUSAs Brock and Hancock...that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years were false.

Respondent knew his statements to AUSAs Brock and Hancock, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years,...were false because Respondent had no child or foster child, therefore no diagnosis of leimoyosarcoma, and no surgery.

(Mike Frisch)

March 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Three Bricks Shy

Charges from the Illinois Administrator

On or about August 11, 2015, at or around 3:00 a.m., Respondent threw a brick through windows of three businesses in Tinley Park, Illinois: Wendy's, located at 7251 183rd Street; Mars Equities, at 18312 West Creek Drive; and Innovative Outpatient, at 18425 West Creek Drive.

On August 11, 2015, at 3:12 a.m., Officers Michael Harmon ("Officer Harmon") and Brian Wood ("Officer Wood") of the Tinley Park Police Department apprehended Respondent at 18310 North Creek Drive. At that time, Respondent reported to Officers Harmon and Wood that he had taken prescription adderall, cocaine, and other stimulants. The responding officers then arrested Respondent for criminal damage to property and transported him to Advocate South Suburban Hospital ("Advocate"). At Advocate, Respondent tested positive for cannabis and amphetamine use.

While admitted, the officers processed Respondent by taking pictures and fingerprints. Following his processing, the officers presented Respondent with a bail bond deposit form which indicated that it was a personal recognizance bond and required Respondent to appear in court in Will County on September 9, 2015. The bond further indicated that should Respondent not appear on September 9, 2015, bond would be set in the amount of $1,500.

On August 11, 2015, Respondent signed the bond and was released from Advocate...

 On February 9, 2016, Respondent pleaded guilty to the charge of criminal damage to property, as alleged in paragraph five, above. The Court entered an order of supervision against Respondent for 12 months, to terminate on February 7, 2017, and required that he pay a fine of $450 and have no contact with the Wendy's located on 183rd Street in Tinley Park.

Respondent's February 9, 2016 plea of guilty is a conviction for purposes of Supreme Court Rule 761(f).

On February 7, 2017, a status hearing was held in case number 2015 CM 2363. At that time, the Court determined that Respondent successfully completed his supervision and dismissed the case.

(Mike Frisch)

March 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, March 27, 2018

But Her Server

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Benghazi- inspired litigation

Sean Smith and Tyrone Woods tragically perished in the September 11, 2012, attacks on United States facilities in Benghazi, Libya. Their parents, Patricia Smith and Charles Woods, sued former Secretary of State Hillary Rodham Clinton for common-law torts based on her use of a private email server in conducting State Department affairs while Secretary of State and public statements about the cause of the attacks she made in her personal capacity while a presidential candidate. They appeal the substitution of the United States as the defendant on the claims involving the email server and the dismissal of their complaint for lack of subject matter jurisdiction and failure to state a claim. We affirm.

The court found that the various proposed causes of action either failed to state a claim or lacked subject matter jurisdiction

“An allegedly defamatory remark must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous.” Id. (internal quotation marks and citation omitted).

Clinton has made no such remarks here. In the ABC News interview, she contradicted Smith and Woods’s version of events but did not state or imply they were lying, instead noting she “underst[ood] [their] continuing grief.” Compl. ¶ 23(a). And in the Conway Daily Sun interview, it was the reporter, not Clinton, who posits someone is lying; all Clinton did was deny that she was lying. Id. ¶ 23(b). In the two subsequent interviews, Clinton bolstered her own version of events by noting that others present at the meeting supported her account and suggesting reasons why her recollection differed from that of Smith and Woods. Id. ¶ 23(c) and (d). Clinton did state that Ms. Smith was “absolutely wrong,” id. ¶ 23(c), but disagreeing with another person’s recollection does not necessarily imply that the other person is lying.

The appellants were represented by Larry Klayman. Secretary Clinton was represented by David Kendall. Jessie K. Liu represented the United States.

The per curiam opinion was signed by Circuit Judges Rogers, Millett and Pilliard. (Mike Frisch)

March 27, 2018 in Current Affairs | Permalink | Comments (0)

15 Minute Increments OK In Wyoming

The Wyoming Supreme Court affirmed a favorable decision for a law firm in a fee dispute.

The court concluded that the law firm's 15 minute minimum increments for charges to the client were not unreasonable under the circumstances

For more than sixteen years, Manigault retained Daly & Sorenson to represent her in ninety-seven separate legal matters ranging from land and oil and gas transactions to ranching, domestic relations, and criminal matters. She typically paid her bills and any accrued interest when proceeds from her oil and gas interests and cattle sales became available.

In late 2012, she retained the firm with respect to one of the matters that gave birth to the present case. Manigault’s mother sued her to collect on two separate promissory notes on which she owed nearly three million dollars, and to collect accumulated interest, late fees, and attorney fees.

The case ultimately settled when Manigault agreed to confess judgment in favor of her mother (notwithstanding her initial position that the money received from her mother was a gift), and in exchange her mother agreed to forgive the entire debt and write off the loss on her taxes. Manigault paid the law firm roughly thirty percent of what it billed in that case, leaving an unpaid balance of approximately $13,116.33.

Earlier in 2012, she retained Daly & Sorenson for what the parties call “the trust litigation.” It involved the large estate of Manigault’s father and its complex distribution through numerous family trusts and family partnerships and his will. Although she and her son were beneficiaries of those trusts, they were controlled by her stepmother, brother, and several attorneys and financial planners. Moreover, they were created and situated in several states and involved far-flung assets worth hundreds of millions of dollars. The trusts’ corpora included stock in publishing companies, holdings in various media outlets, plantations and historic pre-revolution homes in South Carolina, and ranchlands in Wyoming and Montana.

The bills accrued and the law firm sued. A  hearing was conducted by the Wyoming State Bar Committee for Resolution of Fee Disputes

the panel found that the hourly rates charged by Daly & Sorenson were reasonable, and that since 1997 it had represented Manigault in many legal matters without a written agreement. The absence of such an agreement led the panel to deduct interest and fees for long distance phone calls from the amount it found due the firm. It also deducted charges for the preparation of two motions which benefited the law firm but not Manigault, as well as charges for clerical work it determined were improperly billed at paralegal rates. Finally, it also deducted for a single instance of accidental double billing, and it concluded that Manigault owed the firm $64,621.05 after all of these adjustments.

The client appealed and the court had remanded to the panel

On February 18, 2016, the panel determined in its second decision that Daly & Sorenson billed Manigault according to minimum increments of fifteen minutes, that such was its normal practice, and that this had been the practice it had employed with Manigault in ninety-seven separate matters over several years. It also determined that the firm’s use of those increments was not unreasonable.

With respect to billing for certain information exchanges between a firm attorney and another attorney or paralegal employed by the firm, the panel determined that this was likewise the law firm’s normal practice, that it had been employed throughout its long history of representing Manigault, and that it was not unreasonable. The panel’s consequent decision to deduct nothing further from the amount owed to the law firm led to a second petition for judicial review filed on March 25, 2016.

In this appeal

Manigault accuses the law firm of using fifteen-minute minimum billing intervals to routinely charge her for that interval when the specified work took far less time to accomplish, and of billing for unproductive casual conversations between attorneys and paralegals which did not advance her cases. The record indicates, however, that of the eight factors addressed in Rule 1.5(a), only one received more than a cursory mention by the parties, and only that factor seems to have survived as contested throughout the process of judicial review. That factor is the nature and length of the law firm’s professional relationship with Manigault, and the billing practices during that time. She did not rely on that factor to prove her accusations. Instead, she relied principally upon attorney expert testimony that unfavorable inferences could possibly be drawn from a number of billing entries. She did not account for the fact that other inferences were equally possible. On the other hand, members of the law firm testified about its longstanding billing practices, and the adherence to these practices during its relationship with Manigault.

The testimony of the attorneys supported to result

When we accord proper deference to the panel’s allocation of the weight and assessment of the credibility of the testimony presented to it, we are compelled to conclude that the testimony from the attorneys of Daly & Sorenson provided a sufficient and reasonable basis for the panel’s decision. Therefore, its conclusion that Manigault should receive no further reduction relating to the firm’s fifteen-minute minimum billing practice or billing for substantive and necessary intraoffice communications was supported by substantial evidence.

(Mike Frisch)

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

A Fair If Imperfect Proceeding

The Maryland Court of Appeals has held that a sitting judge reprimanded by the state commission received a fair, although not perfect, hearing with adequate due process

We must decide whether proceedings before the Maryland Commission on Judicial Disabilities (“Commission”) violated a judge’s due process rights. As we explained last year, although we have no appellate jurisdiction to review a judge’s exceptions to the Commission’s determination to issue a public reprimand after public charges and a contested hearing, the common law writ of mandamus provides an avenue for a judge to challenge the fundamental fairness of the proceedings before the Commission. Matter of White, 451 Md. 630, 649–50 (2017) (per curiam) [hereinafter White I]. We previously refrained from deciding the due process claims made by Petitioner, Judge Pamela J. White, because we did not have the full record of the Commission proceedings before us. Id. at 652–53. After review of the complete record, we hold that, although the Commission violated applicable Maryland Rules, these violations did not ultimately deprive Judge White of a fundamentally fair proceeding...

“An accused judge is entitled to a fair proceeding, but not necessarily a perfect proceeding.” White I, 451 Md. at 648. As we have detailed, the proceeding before the Commission certainly was not perfect—several mistakes were made. But in this mandamus proceeding, we look only to whether Judge White received the fundamental due process protections under the Maryland Constitution and our Rules, namely “notice, an opportunity to respond, [and] a fair hearing . . . .” Id. Our careful scrutiny of the record convinces us that she did.

The court noted that the issuance of a reprimand was within the powers of the commission over which it did not exercise appellate review.

The judge had raised objections regarding procedures both in the investigatory and adjudicative process

Certainly, judges facing disciplinary proceedings are entitled to notice of the charges against them. Cf. Attorney Grievance Comm’n v. Seiden, 373 Md. 409, 416–21 (2003). A judge’s due process rights are violated, for example, when discipline is based on a rule violation that was not charged. Id.; see also In re Ruffalo, 390 U.S. 544, 550–51 (1968) (attorney discipline charges “must be known before the proceedings commence. . . . [and] become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.”).

Here though, Judge White was charged with violating MCJC 1.2, and her conduct at the hearings on May 5, 2014 was identified as a basis for the charges. Unlike the respondents in Seiden and Ruffalo, who were not charged with the rule violations they were ultimately found to have committed, Judge White knew that her conduct at this hearing was part of the complaint and would be considered by the Commission. She had notice of the charged misconduct attributed to her behavior at the May 5, 2014 hearing and the Commission’s sanction did not exceed the charges.

Our earlier coverage is linked here.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”

Then

Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

(Mike Frisch)

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

Monday, March 26, 2018

Right To Accountant Violated

The United States Court of Appeals for the District of Columbia Circuit vacated an SEC disciplinary order and remanded with directions to vacate all orders entered in the matter

The Public Company Accounting Oversight Board investigated an audit that had been conducted by the Ernst & Young accounting firm. The Board’s investigation focused in part on Mark Laccetti, who was the Ernst & Young partner in charge of the audit. As part of the investigation, the Board interviewed Laccetti. During that investigative interview, the Board allowed Laccetti to be accompanied by an Ernst & Young attorney. But the Board denied Laccetti’s request to also be accompanied by an accounting expert who would assist his counsel.

The Board ultimately charged Laccetti and found that he had violated Board rules and auditing standards. The Board sanctioned Laccetti, suspending him from the accounting profession for two years and fining him $85,000. The Securities and Exchange Commission affirmed the Board’s decision.

The appeal

Laccetti argues that the Board, in applying the rules, unlawfully barred an accounting expert from assisting Laccetti’s counsel at the investigative interview. The Board stated that it denied Laccetti’s request because Laccetti’s expert was employed at Ernst & Young. The Board did not want Ernst & Young personnel present for the testimony of the Ernst & Young witnesses because it apparently did not want Ernst & Young personnel to monitor the investigation. That was the sole reason provided by the Board for denying Laccetti’s request.

The Board’s rationale suffers from three independent flaws...

An Ernst & Young employee was already planning to attend (and did attend) Laccetti’s interview – namely, the Ernst & Young attorney who accompanied Laccetti. Consistent with Board policy and relevant ethics rules, that Ernst &Young attorney could act as attorney for both Laccetti and the company. See PCAOB Release No. 2003-015 at A2-19 (Sept. 29, 2003). Given the presence of the Ernst & Young attorney at the interview, the Board’s rationale for excluding the Ernst & Young accounting expert – that the Board did not want Ernst & Young personnel to be present – makes no sense here.

Second

even if the Board wanted to bar an Ernst & Young affiliated accounting expert, that explanation would not justify the Board’s denying Laccetti any accounting expert. Instead, the Board could have told Laccetti that he could bring to the interview an accounting expert who was not affiliated with Ernst & Young. The Board did not do so. Rather, the Board’s letter to Laccetti flatly stated that “the presence of a technical expert consultant” is “not appropriate at this time.”

 Third

even putting those points aside, the Board’s rules establish that the Board could not bar Laccetti from using an accounting expert to assist his counsel in these circumstances.

Result

the only reasonable remedy is for the Board, if it chooses and if the law otherwise permits, to open a new disciplinary proceeding against Laccetti and, if it chooses to reinterview Laccetti, to do so without violating his right to counsel. The right to counsel is guaranteed by the Board’s rules. Infringement of that right is a serious matter. We cannot sweep that violation under the rug in the manner advocated by the Board in this case.

Circuit Judge Kavanaugh authored the opinion. (Mike Frisch)

March 26, 2018 | Permalink | Comments (0)

Alcohol- Fueled Crimes

A series of criminal encounters has resulted in a suspended suspension of six months by the New Jersey Supreme Court.

The report of the Disciplinary Review Board noted a serious of alcohol related crimes.

In 2012

Respondent admitted that, on December 30, 2010, while under the influence of alcohol, she had an argument with her former husband, grabbed a butcher knife, and threatened him with it. Because she had consumed alcohol, when the police arrived, she "end[ed] up scuffling" with them, and kicked one of the police officers.

At the sentencing hearing before Judge Roma, respondent’s attorney pointed out that she had an alcohol problem, but continued to receive counseling. Respondent revealed that she had been married and divorced twice and had two children from two different fathers. She asserted that she had "a horrible second marriage," and chose to remain in a violent relationship, "destroying" herself with alcohol. Respondent maintained that she had paid for her mistakes, including losing custody of her children "for a long period of time." Her participation in various programs helped her to regain joint custody of them.

In 2015

She admitted that, on August 30, 2014, while in Ramsey, New Jersey, she consumed sufficient amounts of alcohol to become intoxicated. Therefore, the police were summoned to the Ramsey Liquors parking lot. While one of the police officers tried to speak to her and to remove her from the scene, she attempted to hit him. As a result of her arrest, respondent violated her probation.

In sum

Here, during a four-year period, respondent had four separate  encounters with the criminal justice system. Her misconduct, fueled by alcohol, resulted in her attempt to assault her former husband by threatening him with a knife; assault upon police officers; and charges of endangering the welfare of her children, causing her to temporarily lose custody of them. Respondent was given every opportunity to conform her behavior but failed to do so. Her PTI was revoked when she violated probation. Each encounter with the criminal justice system resulted in a requirement of drug and alcohol testing and counseling, and ADV counseling. Clearly, until very recently, respondent remained sober only for brief intervals. The consequences of respondent’s inability to remain sober were serious and the discipline for her conduct should reflect the seriousness of her repeated offenses...

We have considered respondent’s considerable efforts toward rehabilitation and the hardships that a suspension may cause at this juncture. We, therefore, determine to suspend the suspension, conditioned on respondent’s continued sobriety and good behavior. If, during the period of her suspended suspension, respondent engages in similar conduct that results in her arrest, we recommend that, upon the OAE’s filing of a certification with the Court, the Court impose a six-month suspension, without further notice.

We further determine to require respondent to submit to random alcohol monitoring and, for a six-month period, to continue with alcohol treatment and therapy.

We also require respondent to provide to the OAE proof of continued treatment for her alcohol addiction, as well as proof of fitness to practice from an OAE-approved mental health professional within sixty days of the Court’s Order herein.

(Mike Frisch)

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

Another Drunk In Court Suspension

There seems to be an explosion of "drunk in court" bar discipline cases.

The Michigan Attorney Discipline Board Tri-County Panel imposed a suspension of 180 days for the following misconduct

 Respondent was found guilty of direct criminal contempt by the 35th Circuit Court, for appearing before the court while visibly intoxicated. Based on this, the panel found that respondent violated the criminal laws of the State of Michigan, contrary to MCR 9.104(5). Additionally, based on respondent's default for failing to answer the formal complaint, the hearing panel found that respondent committed professional misconduct by failing to report his criminal contempt conviction and by failing to respond to two requests for investigation.

The panel found that respondent failed to report his conviction, in violation of MCR 9.120(A)(1); violated, or attempted to violate, the Rules of Professional Conduct, in violation of MRPC 8.4(a); failed to answer two Requests for Investigation, in violation of MCR 9.104(7), MCR 9.113(A), and (B)(2); and engaged in conduct hat Involved dishonesty, fraud, deceit, misrepresentation or violation of the criminal law where such conduct reflected adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, in violation of MRPC 8.4(b). Respondent was also found to have violated MCR 9.104(1)-(4); and MRPC 8.4(a) and (c).

(Mike Frisch)

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

Friday, March 23, 2018

Semester At Sea Ends In Disbarment

The Maryland Court of Appeals has disbarred an attorney convicted of serious crimes

Respondent Claire L. K. K. Ogilvie violated Maryland Attorneys’ Rules of Professional Conduct 19-308.4(a), (b), and (d). These violations stemmed from Respondent’s criminal conviction for breaking and entering, malicious wounding, and abduction, all of which occurred in the Commonwealth of Virginia. The Court of Appeals held that disbarment was the appropriate sanction for Respondent’s misconduct.

The Daily Progress reported on the crime

A former high school teacher was sentenced to four years in prison after pleading guilty to breaking into House Minority Leader David J. Toscano’s home in February and assaulting his wife.

Claire Ogilvie, 36, pleaded guilty Friday to breaking and entering, malicious wounding and abduction by force or intimidation. She was sentenced to 50 years in prison, with all but four suspended.

As part of the plea agreement, prosecutors removed a clause stating Ogilvie had a deadly weapon from the breaking and entering charge. If convicted on the charge as it originally stood, Ogilvie faced up to a life sentence.

 Upon release from prison, Ogilvie must leave the state and live at least 100 miles from Charlottesville. Barring an emergency, she cannot stop within 100 miles of the city...
 
Ogilvie met Toscano and Tramontin in 2010 during a Semester at Sea cruise, a study-abroad program sponsored by the University of Virginia. She became friends with the family and then moved to Charlottesville, where she tutored their son, Haislip said in court.
 
The family became uncomfortable with Ogilvie during the next few months and asked her to stay away, Haislip said. Almost two years later, Ogilvie broke into the family home and attacked Tramontin.

Tramontin left her house for about half an hour to take her son to practice. The door to the house was unlocked when she returned, but Tramontin thought she could have left it that way, Haislip said.

Inside the house, smoke detectors started beeping and wouldn’t stop, as if the batteries were dying, and this led Tramontin to check the basement. Once Tramontin reached the basement, she was jumped from behind and pushed to the ground, Haislip said. Her hands were tied behind her back with a soft material, possibly a cloth.

Ogilvie told Tramontin to stay on the floor and started questioning her, at one point striking her head multiple times with a pipe that had a faucet handle attached to it, causing Tramontin’s face to bleed, Haislip said.

At some point, Ogilvie tried to get her to go to the laundry room and Tramontin refused. Tramontin bit Ogilvie’s finger hard, causing Ogilvie to lose her grip on the pipe. Haislip said Tramontin was able to get the weapon and hit Ogilvie on the head.

Ogilvie’s demeanor then changed and Tramontin was able to talk her down by saying she could be part of the family again. He said Tramontin wanted Ogilvie to leave before her son came home.

The women cleaned up and Ogilvie left. Once Tramontin’s son was home, they went to the emergency room, as she was bleeding profusely.

Haislip said Ogilvie didn’t have permission to be in the house and authorities later found photographs that proved she had broken in before. He said she either came in with a key from when she watched their house while still on good terms, or through an open window in the basement.

She had written a letter asking not to be suspended or disbarred 

[] I do not feel that my charges violate the Maryland Rules of Professional Conduct. While these convictions would reflect adversely on myself as a person, they do not do so on my honesty, trustworthiness, or fitness to practice law specifically. Although an attorney is personally answerable to all criminal laws, she should be professionally answerable only for those offenses indicating a lack of characteristics desirable and relevant to law practice, such as those involving dishonesty, fraud, or the like.

In addition, my experiences while incarcerated have in fact made me more fit to practice law. The injustices I’ve witnessed and experienced, including those committed by my own attorney, have opened my eyes to the inadequate resources available to defendants, and the prejudice defendants face in the criminal justice system and in the media.

The court

Respondent’s illegal acts negatively impact the public’s perception of the legal profession. See id. Respondent unlawfully entered the home of another, and maliciously wounded and abducted someone in that home. Any one of these offenses negatively impacts the public’s perception of the legal profession. When we consider the illegality and egregious nature of the acts collectively, it is very clear that Respondent’s actions or similar conduct carried out by an attorney would leave the reputation of the legal profession in disrepute. We, therefore, conclude that Respondent violated MARPC 19-308.4(d)...

Although Respondent’s criminal conduct may not rise to the level of egregiousness as the attorneys’ conduct in Greenleaf and Painter, her conduct surely rises above the level of severity as that of the attorneys in Kerpelman, Clinton, Dechowitz, and Sheinbein. Considering the felonious nature of Respondent’s conduct, her criminal conviction and sentence, her failure to report her charges and conviction to Bar Counsel, and the absence of any extenuating circumstances, we concluded that Respondent’s “serious criminal conduct” warrants disbarment.

(Mike Frisch)

March 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: Don't Give Closing Argument With A .337 Breathalyzer

The Kentucky Supreme Court ordered the temporary suspension of an attorney based on a motion by the Inquiry Commission of the State Bar

Gray represented his client in a civil case in Jefferson Circuit Court, the trial"for which was held in December 2017. On the last day of trial, Gray delivered an hour-long closing argument. Gray's demeanor and performance during the argument concerned the trial judge, and after the jury returned its verdict against Gray's client, the trial judge asked Gray to submit to a breathalyzer test. Gray acquiesced and blew a .337 on the breathalyzer. Emergency medical services were called and Gray was taken to a local hospital by ambulance.

The court

Because the Commission has shown probable cause that such a substantial harm exists, we hereby temporarily suspend Gray from the practice of law.

(Mike Frisch)

March 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Darwin In Iowa

A divided Iowa Supreme Court has held that a defendant who entered a knowing guilty plea can claim actual innocence

we overrule our cases holding that defendants may only attack the intrinsic nature—the voluntary and intelligent character—of their pleas. We now hold the Iowa Constitution allows freestanding claims of actual innocence, so applicants may bring such claims to attack their pleas even though they entered their pleas knowingly and voluntarily. Accordingly, we adopt a freestanding claim of actual innocence that applicants may bring under our post conviction relief statute.  Therefore, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case to the district court for further consideration consistent with this opinion.

The plea

On April 2, 2007, Schmidt entered into a plea agreement. He agreed to plead guilty to assault with intent to commit sexual abuse, an aggravated misdemeanor in violation of Iowa Code section 709.11 (amended count I) and incest (count IV).

Chief Justice Cady concurred in Justice Wiggins' majority opinion

The process of justice must always be fair. This case stands tall as the embodiment of this fundamental principle of law. It is a substantial step forward in our constitutional march to become better. Innocent people should always have a forum to prove their innocence. I fully concur in the opinion of the court.

Yet, the actual process of justice available to Schmidt to now pursue the new claim given to him must also be fair. This fairness is the reason the case must be remanded to the district court for it to decide if summary adjudication should be granted. I write separately only to explain this important part of the case more fully and why the actual innocence claim cannot now be decided on appeal.

Going forward, when an actual-innocence claim based on the recantation of a witness is brought in our courts, summary judgment will remain a viable procedural vehicle for the state to ask the court to resolve the claim. Consistent with all summary judgment proceedings, the legal issue will be whether the moving party is entitled to summary judgment, under a set of facts assumed to be undisputed for the purposes of the motion, because a reasonable juror could still conclude the defendant is guilty of the crime. For purposes of summary adjudication of witness recantation claims, the undisputed facts needed to support the motion will normally center on the remaining evidence of guilt from other witnesses found in the minutes of testimony. In many cases, the remaining evidence may support summary judgment, as a reasonable juror could still convict the defendant based on the surviving evidence...

The case needs to be remanded to the district court so the State can amend its motion for summary judgment to claim Schmidt has failed to bring a claim of actual innocence that survives summary adjudication. The district court needs to consider the motion after Schmidt has filed an amended response. This procedure is required to ensure the process of justice is fair.

Justice Waterman dissented

I respectfully dissent and would affirm the district court’s summary judgment and the court of appeals decision affirming it under our long-standing precedent enforcing the legal effect of guilty pleas. I join Justice Mansfield’s separate dissent. This year, the United States Supreme Court resoundingly reiterated a fundamental legal tenet: a valid guilty plea waives the defendant’s constitutional right to trial and right to confront witnesses and “relinquishes any claim that would contradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty.’ ” Class v. United States, 583 U.S. ___, ___, 138 S. Ct. 798, 805 (2018) (quoting United States v. Broce, 488 U.S. 563, 573–74, 109 S. Ct. 757, 764 (1989)). A guilty plea precludes a defendant from a later challenge in which he would “deny that he engaged in the conduct to which he admitted.” Id. All nine justices agreed with that proposition.

Dissent also from Justice Mansfield

I respectfully dissent. Constitutional interpretation is not Darwinian evolution, and a decision of this court today is not superior to the decisions that preceded it just because it is more recent. Whether this court is on a “constitutional march to become better” should be determined by others, not by ourselves.

While it is tempting to agree that “[i]nnocent people should always have a forum to prove their innocence,” the realities of any criminal justice system are more complex. Even the majority does not take this statement literally. For example, even the majority accepts for now the limits in Iowa Code chapter 822 on claims brought by those who say they are actually innocent.

I join Justice Waterman’s dissent, and write separately only to highlight several points.

First, this case does not involve an actual recantation.

Second, the rule that a guilty plea waives all defenses and objections which are not intrinsic to the plea is both long-standing and sound.

Third, the court has provided no doctrinal basis for grounding an actual-innocence claim in the Iowa Constitution.

Fourth, the court leaves many questions unanswered that will have to be sorted out by our district judges in the coming years...

 From the State’s perspective, I am guessing it would have simply preferred to try Schmidt all those years ago. In the long run, I am doubtful today’s decision will benefit defendants. More importantly, today’s decision needlessly overturns an established rule of law that was fair to all parties and worked well.

Excellent recent updates to the Iowa Supreme Court web page provides access to the briefs and oral arguments. (Mike Frisch)

March 23, 2018 in Current Affairs | Permalink | Comments (0)