Tuesday, March 20, 2018

Don't Leave The Superdome At Halftime

An attorney departed the Superdome at halftime of a New Orleans Saints exhibition game.

The next thing he remembers is waking up in the hospital believing that he was a mugging victim.

He also possessed cocaine.

He had been transported to Tulane Lakeside Hospital and from there to central lockup.

A criminal case resulted in diversion. 

He invoked the 5th Amendment in the bar proceedings. Indeed, the case raises some interesting questions about the role that the Bar's lawyer counseling program plays in the disciplinary process.

A Louisiana Hearing Committee found that there was not evidence that suggested an ongoing alcohol or cocaine problem and recommends a fully-stayed suspension with continued diagnostic monitoring for two years. (Mike Frisch)

March 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"Bad Relationship"

The Virginia State Bar Disciplinary Board suspended an attorney for a year and a day

The Respondent was an attorney licensed to practice law in the Commonwealth of Virginia at all times relevant to the conduct set forth herein. Between December 20, 2015 and January 8, 2016, the Respondent took three (3) checks totaling in excess of one thousand six hundred dollars ($1,600.00) from the business of her then boyfriend, David Wilds (hereinafter referred to as “Wilds”). The Respondent testified that, at the time that she took the money, Wilds was not supporting their child. The Respondent took the checks, which were made out to Wilds’s business, to a nearby bank and requested that the teller deposit the checks into the Respondent’s joint checking account with Wilds. However, the teller refused to deposit the checks as they were not made out to the Respondent. Thereafter, the Respondent went to a different bank branch and used an ATM to deposit the checks into her joint checking account with Wilds.

On February 24, 2016, the Respondent was arrested on a charge of larceny of checks in violation of § 18.2-98 of the 1950 Code of Virginia. On December 5, 2017, the Respondent  entered into a Plea Agreement and Agreed Disposition with the Commonwealth, wherein she agreed to plead guilty to the felony charge of larceny; and, the Circuit Court for the City of Winchester found that the facts were sufficient to sustain a finding of guilt in that matter. The Court then deferred the case for a period of two years during which time the Respondent must complete fifty hours of community service and be placed on supervised probation for a period of one year followed by one year of unsupervised probation. In accordance with the Plea Agreement, upon the successful completion of the two-year deferral period, the Respondent’s conviction will be reduced to a misdemeanor.

The board rejected  her motion to dismiss because she was not convicted of a felony.


The Respondent has refused to acknowledge the wrongful nature of her conduct in this matter. Rather, she testified that she was merely guilty of “being in a bad relationship” and “being a bad girlfriend.” Furthermore, in preparation for her hearing before the Board, the Respondent drafted and requested that Wilds sign a statement claiming that he had requested that the prosecutors dismiss the larceny of checks charges against the Respondent. Wilds refused to sign the document; and, according to the testimony of Kristen Zalenski, Attorney at Law, Special Prosecutor for City of Winchester (hereinafter referred to as “Zalenski”), Wilds never asked her to drop the charges against the Respondent. The Board finds the Respondent’s refusal to acknowledge the wrongful nature of her conduct and her attempt to submit false evidence in this proceeding to be aggravating factors.

On the other hand

In its consideration of mitigating factors, the Board found that the checking account into which the checks were deposited was in both the Respondent and Wilds’s name, that Wilds received all of the funds from the checks, and that the Respondent kept none for herself. This evidence was confirmed by Zalenski, who testified that Wilds did receive all of the money from the Respondent.

In her testimony on Respondent’s behalf Detective Marti Ivins (hereinafter referred to as “Ivins”), who was assigned to investigate this matter, admitted that she had not checked with the State Corporation Commission to determine whether the Respondent was the Registered Agent for Wilds’s business. During the hearing before the Board, with permission of the Respondent and Bar Counsel, the Board retrieved the State Corporation Commission’s records. They reflected that, at the time of the events at issue, the Respondent was, in fact, the Registered Agent for Wilds’s business.

In addition to investigating the larceny charge, Ivans testified she had also been assigned to investigate an allegation of rape made by the Respondent against Wilds. Ivins admitted that the Respondent had reported the rape allegation to the Winchester City Police Department, but no arrest was made, as the matter was not investigated. Instead, Ivins charged the Respondent with filing a false police report against Wilds. That charge was later dismissed, and the Respondent filed a complaint against Ivins; however, nothing came of it.

The attorney is presently serving a disability suspension. This disciplinary sanction will start when the disability suspension ends. (Mike Frisch)

March 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Resignation Converts To Three-Month Suspension

A Massachusetts resignation led to a reciprocal three-month suspension by the New York Appellate Division for the First Judicial Department.

The attorney had defaulted in New York

the only issue left for resolution by this Court is the appropriate sanction to impose. As a general rule, in reciprocal disciplinary matters, this Court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought (see Matter of Peters, 127 AD3d 103 [1st Dept 2015]; Matter of Cardillo, 123 AD3d 147 [1st Dept 2014]). Only in rare instances will this Court depart from its general rule (see Matter of Lowell, 14 AD3d 41, 48 [1st Dept 2004], appeal dismissed 4 NY3d 846 [2005], lv denied 5 NY3d 708 [2005]). This is such an instance because this Court has imposed suspensions ranging from three to nine months for the misconduct at issue (see e.g. Matter of Marshall, 153 AD3d 1 [1st Dept 2017]; Matter of Peralta-Millan, 141 AD3d 87 [1st Dept 2016]). A three-month suspension is in general accord with this Court's precedent, particularly given respondent's lack of prior discipline, aggravation and venal intent.

The story

The Massachusetts disciplinary proceeding arose from respondent's representation of the plaintiff in a defamation action which was filed in 2006 and dismissed on summary judgment in 2010. Although respondent filed a notice of appeal, he neglected to meet the deadline for assembling the record and the appeal was dismissed. Respondent unsuccessfully engaged in further efforts in the appellate court to obtain relief from the dismissal. Following dismissal of the case, respondent led his client to believe that his claims had been reinstated and respondent was working to obtain a monetary award or settlement. Respondent allegedly went as far as to claim he had secured an award of over $1 million for the client. In 2015, the client learned there had been no further litigation and no settlement

In or about March 2017, respondent, represented by counsel, tendered his resignation from the practice of law to the Massachusetts Bar Counsel, conceding that he had misled his client in violation of various provisions of the Massachusetts Rules of Professional Conduct. Respondent further acknowledged that if the matter were litigated before the Board of Bar Overseers (the Board) and the Massachusetts court, he would likely receive a term of suspension, rather than an indefinite suspension or disbarment. However, he declined to contest the allegations or any sanction.

The Board initially rejected respondent's resignation and requested additional information regarding Bar Counsel's assessment as to whether the underlying conduct would or would not warrant disbarment. Bar Counsel provided additional information which included its assessment that if the matter were to be litigated through contested proceedings, respondent would receive a term of suspension, and that counsel was not aware of any facts or circumstances that would justify an indefinite suspension or disbarment. Counsel noted that there was mitigation, to wit, respondent had no prior record of discipline, he did not act with venal intent, the client did not suffer any harm, and there was no aggravation. However, given respondent's voluntary tendering of his resignation and that he was represented by skilled and experienced counsel, the Board recommended that respondent's resignation be accepted by the Massachusetts court.

By order of July 21, 2017, the Massachusetts court accepted respondent's resignation and struck his name from the roll of attorneys, effective August 20, 2017. As noted, the Committee seeks an order finding that respondent has been disciplined by a foreign jurisdiction and directing him to demonstrate to this Court why discipline should not be imposed in New York for the underlying conduct (22 NYCRR 1240.13) because respondent's misconduct in Massachusetts would violate New York Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.4(a)(1)(iii), 1.4(a)(3), 8.4(c), and 8.4(h). The Committee additionally contends that this Court's precedent supports at least a three-month suspension and that such sanction is further supported by the fact that respondent neglected to inform it of his discipline in Massachusetts pursuant to 22 NYCRR 1240.13(d).

(Mike Frisch)

March 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Recusal Required

An order denying recusal from the Chief Justice of the Ohio Supreme Court in a criminal case

Ms. Williams claims that she will not receive a fair trial before Judge D’Apolito, primarily because, she claims, he engaged in an ex parte communication with the alleged victim in this case. Specifically, she states that before a March 2017 hearing on her motion to reduce bond, the judge excluded her from an off-the-record meeting in his chambers with the alleged victim, the prosecutor, and her defense counsel. Ms. Williams believes that the judge’s conduct violated her constitutional and statutory rights and that the judge is biased against her because she is an African-American female and the alleged victim is a white male.

 Judge D’Apolito has responded in writing to the affidavit. The judge acknowledges that immediately before the March hearing, he met with the alleged victim and counsel in his chambers. According to the judge, the victim feared for his safety and counsel agreed to a discussion with the victim in chambers to reduce any anxiety. After the five-minute meeting, the alleged victim and counsel proceeded into the courtroom for a hearing on the record, in which both sides were given the opportunity to present their positions on the motion to reduce bond. Judge D’Apolito states that he denied Ms. Williams’s motion based solely on the evidence introduced during the hearing and on the record. The judge believes that he has taken the steps necessary to protect Ms. Williams’s legal rights.

There was no showing necessary for disqualification

Ms. Williams may have other remedies for her disagreement with how the judge handled her bond hearing, but she has not established that the judge’s actions were the product of bias against her.

(Mike Frisch)

March 20, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Illinois Update

The Illinois Supreme Court recently announced a number of dispositions in bar matters.


Mr. Boorstein, who was licensed in 1960, was suspended from the practice of law for ninety days.  During the course of representing a husband and wife in a mechanic’s lien action, he created a fictitious corporation that had a name similar to one of the parties to the case, drafted a letter containing false statements about the fictitious corporation, and attached the letter to a motion to dismiss in which he referred to the letter. About a year later, while the case was still pending, he created two fraudulent lien releases, had his employees sign and notarize the phony documents, and directed the creation of another fictitious corporation, in order to deceive a bank into believing that the lien no longer existed. The suspension is effective on April  5, 2018.

Mr. Niesse, who was licensed in 2005, was suspended for six months. He was the chief financial officer for Precious Metal Refinery Services (“PMRS”). During the pendency of a lawsuit filed by one of PMRS’s former employees against the company, Mr. Niesse gained access to that employee’s personal e-mail account without that former employee’s knowledge or authorization. The information Mr. Niesse obtained was subsequently used against the plaintiff in the lawsuit. When his conduct was discovered, Mr. Niesse filed an affidavit with the court in which he made false statements by portraying his access to the former employee’s personal e-mail as “inadvertent.” The trial court imposed a default judgment as a sanction against PMRS based on Mr. Niesse’s conduct. The suspension is effective on April  5, 2018.

 Mr. Vazanellis, who was licensed in 2005, was suspended in the State of Illinois until he is reinstated to the practice of law in the State of Indiana. While not registered or authorized to practice law in Illinois, he represented clients in at least sixteen different court actions in Illinois, including fourteen criminal cases and two civil litigation matters.  

Mr. Fitzgerald, who was licensed in 1991, was suspended on an interim basis and until further order of the Court. He was convicted in the Circuit Court of Berrien County, Michigan, of manufacturing over 200 marijuana plants and possessing, with the intent to deliver, marijuana, both felonies. He was also charged with maintaining a drug house, a misdemeanor, for his role in operating an indoor marijuana grow operation by cultivating and manufacturing marijuana plants, in Sawyer, Michigan.

(Mike Frisch)

March 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, March 19, 2018

Bar Complaints Against Prosecutor Exempt From FOIA

The South Carolina Court of Appeals affirmed an order denying access to bar complaints against a prosecutor

In this action pursuant to the Freedom of Information Act (FOIA), South Carolina Lawyers Weekly (Appellant) asserts the circuit court erred in refusing to compel Scarlett Wilson, as Solicitor of the Ninth Judicial Circuit, to produce any disciplinary complaints against her. Appellant argues the circuit court erred by: (1) failing to find Wilson is a public officer and her office is a public body subject to FOIA; (2) relying on Rule 12 of the Rules of Lawyer Disciplinary Enforcement to determine the requested documents are not required to be disclosed; (3) finding the documents were exempt from FOIA pursuant to S.C. Code Ann. § 30-4-40(a) (2007 & Supp. 2017); and (4) failing to find Wilson waived her right to confidentiality. We affirm.

The story

On July 10, 2015, Phillip Bantz, a staff writer for South Carolina Lawyers Weekly sent a FOIA request to Solicitor Wilson's official email address requesting "any records relating to any disciplinary complaints against you or action taken with respect to you as a member of the bar."

The Ninth Circuit Solicitor's Office (the Solicitor's Office) responded, on official letterhead, and denied Bantz's request. The office noted, "In the last year a number of grievances have been filed against Ms. Wilson by or at the behest of disgruntled criminal defense lawyers . . . . The South Carolina Office of Disciplinary Counsel thoroughly investigated these matters and recommended dismissal of all of these charges."

In denying the FOIA request, the Solicitor's Office noted that "[w]hile the Solicitor's Office is a 'public body' and subject to FOIA, Ms. Wilson is not personally a 'public body.'"

The court found no waiver

Initially, Appellant asserts Solicitor Wilson waived her right to confidentiality of the requested documents by referring to their existence in her FOIA response. We disagree.

The Bar rules govern 

Based on the plain language of Rule 12(b), complaints filed with the Office of Disciplinary Counsel do not become public documents until formal charges are filed and 30 days have passed after the filing of an answer, or in the absence of an answer, 30 days after the time to file an answer has expired. Because Rule 12(b) indicates lawyer disciplinary complaints do not become public until after formal charges are filed, and no formal charges were filed against Solicitor Wilson, any complaints would not be public documents, and Solicitor Wilson would not be required to be disclose them pursuant to FOIA.

(Mike Frisch)

March 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Crime Of Moral Turpitude

A published opinion of the California State Bar Court Review Department recommends disbarment for a criminal conviction

On April 30, 2013, Jordan Tonya Louise Peters was driving under the influence of prescription drugs when, without braking, she rear-ended a car stopped at a traffic light. The other driver was seriously injured and the other driver’s passenger, her 69-year-old husband, died. On her plea of nolo contendere, Peters was convicted of felony vehicular manslaughter while intoxicated without gross negligence.

Disbarment is the presumed sanction for a felony conviction in which the surrounding facts and circumstances involve moral turpitude, unless the most compelling mitigating circumstances clearly predominate. A hearing judge found that the facts and circumstances surrounding Peters’s conviction involved moral turpitude, and, not finding compelling mitigation, recommended disbarment.

Peters appeals. She argues that the facts and circumstances surrounding her crime did not involve moral turpitude and her mitigating circumstances are entitled to more credit. She contends that a two-year actual suspension would be sufficient to preserve the integrity of the profession and protect the public. The Office of Chief Trial Counsel of the State Bar (OCTC) requests that we affirm the disbarment recommendation.

Upon our independent review (Cal. Rules of Court, rule 9.12), we find the facts of the conviction involve moral turpitude, and the mitigating circumstances are not compelling. We can discern no reason from this record to deviate from the applicable disciplinary standard, and thus affirm the disbarment recommendation.

The attorney had a history of prescription drug abuse and had ceased practice in 2012 due to stress.

On April 30, 2013, Peters picked up a Neurontin refill and then went to her office at the construction company at which she was employed at the time, worked on several projects and interacted with colleagues. At trial, she admitted that between 9:18 a.m. and 2:00 p.m., she took six or seven Neurontin pills—more than her full day’s prescribed dose—in roughly five hours. She also had several other prescription drugs in her system, including tramadol, another pain medication prescribed by her primary care doctor. She testified that she did not feel impaired and felt no different that day than any other day.

Unexpectedly, Peters was called around 3:15 p.m. to pick up her son and left work earlier than planned. Three eyewitnesses who observed her driving testified at trial. Making a left turn, on a Roseville, California street, Peters veered right across four lanes, and drove up and over a curb and sidewalk until all four tires were on a grassy area beyond the sidewalk. Peters recalled striking only the curb. Without stopping, she returned to the road and swerved left across three lanes toward the center median. She then swung back over to the right-hand curb, almost came to a stop, but did not. She continued to drive at varying speeds for another half-mile. Her driving was so erratic and worrisome that two drivers behind her turned on their emergency flashers to try to slow traffic and to warn others, and one of them called 911.

Around 3:40 p.m., Peters was traveling at approximately 50 to 60 miles per hour when, without braking, she rear-ended one of several cars stopped at a red light. Bonnie Weaver was the driver of that car and her husband of over 48 years, Robert Weaver, was the front seat passenger. The impact crushed the back half of the Weavers’ car, leaving nothing behind the front seats. The couple suffered grave injuries and were transported to the hospital. Robert died hours later. Bonnie survived, but continues to suffer from her injuries, as discussed in detail below in aggravation. Peters’s erratic driving also set off a chain of events that caused a separate collision involving three other cars, resulting in injuries to two other victims.

She pled no contest to the criminal charge.

On moral turpitude

Peters argues that she should not be found culpable of moral turpitude, primarily because she did not know she was addicted to Neurontin nor did she feel impaired the day of the collision. However, her contention does not correctly reflect the test for moral turpitude. The test is whether the facts and circumstances surrounding her criminal conduct show either “a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties)” or involve “such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession...

Peters had an admitted history of being unable to control her prescription drug use, which prompted one physician to cease treating her. Though she stopped using Norco in 2012, she took Neurontin contrary to direction for nine to 12 months prior to the collision. On the day of the crash, Peters knowingly took six or seven Neurontin pills—more than her full day’s prescribed dose—in about five hours. Despite having previously felt sedated by the drug, she still chose to drive. For nearly a mile, she traversed widely across multiple lanes but did not stop, even after she ran all four tires of her car over the curb and onto the grass. Instead, she continued driving at approximately 50 to 60 miles per hour, and, without braking, rear-ended the Weavers’ stopped car. She destroyed their car, killed Robert, gravely injured Bonnie, and injured others.

While the board gave some mitigating weight to her 19-year discipline-free career, little was given to her depression and drug abuse

We applaud Peters’s rehabilitation efforts, both voluntary and mandatory. Yet, given her years-long history of abuse, her earlier resistance to seeking treatment, and that she only began her treatment just over two years ago, we find, for the purposes of attorney discipline, that Peters has started but not completed rehabilitation.

Despite remorse and favorable character evidence

While she had a 19-year discipline-free career before the collision, her rehabilitation is in its early phase, and we find she has not shown her misconduct is unlikely to recur. For the same reason, her crime is not fully mitigated by her physical and emotional problems. These mitigating factors, together with her moderate evidence of good character, pro bono and community service, and remorse, and her limited credit for cooperation do not constitute compelling mitigation. They fall far short of predominating, given her extremely serious misconduct and the profound harm she caused. Anything less than disbarment would fail to protect the public and undermine its confidence in the legal profession. Thus, before Peters is entitled to resume practicing law, she should be required to demonstrate in a reinstatement proceeding by clear and convincing evidence, her rehabilitation and exemplary conduct over an extended period of time.

(Mike Frisch)

March 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Reasonable Grounds For Believing

An interlocutory license suspension from the Hearing Division Tribunal of the Upper Canada Law Society of a paralegal license.

The evidence

 The evidence discloses that Ms. Zopf has been criminally charged with one count of Identity Theft, two counts of Fraud Under $5,000, two counts of Obtaining Credit by Fraud, one count of Uttering Forged Documents, two counts of Identity Fraud and one count of Possession of a Counterfeit Mark.

 These criminal charges relate to two incidents, one in September 2015 and one in June 2017. It is alleged that in September 2015, Ms. Zopf obtained a payday loan of $400 by falsely holding herself out to be someone else and by tendering identity and other documents. It is alleged that in June 2017, Ms. Zopf attempted to open a Bell Canada account for landline, internet and television services using a false identity.

The investigator’s affidavit includes evidence tending to prove the alleged criminal conduct. The criminal charges allege conduct that is outside of Ms. Zopf’s work as a paralegal and is instead personal conduct. However, the alleged criminal conduct raises significant issues of honesty and integrity.

It is not necessary or appropriate that we determine whether Ms. Zopf acted as is alleged in the outstanding criminal proceedings nor are we to determine whether those actions, if proven, would be professional misconduct.

Our responsibility is to determine whether there are “reasonable grounds for believing” that there is a “significant risk of harm” to members of the public, or to the public interest in the administration of justice, if the suspension order is not made and that making the suspension order is likely to reduce the risk.

The affidavit evidence provides reasonable grounds for believing that Ms. Zopf may have acted as is alleged in the outstanding criminal proceedings. This evidence is not challenged for the purposes of this motion nor is there any evidence to the contrary. Of course, this is not to say that Ms. Zopf will be found guilty of those charges, but that is not the question here.

(Mike Frisch)

March 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Appearances Matter

The Ohio Supreme Court Chief Justice granted disqualification of a judge

In July 2015, a jury convicted Mr. Kraus—who was, at the time, a member of the Ohio House of Representatives—of theft from an elderly person. In December 2016, the Sixth District Court of Appeals affirmed his conviction. State v. Kraus, 2016-Ohio-8003, 74 N.E.3d 880 (6th Dist.). In early 2017, Mr. Kraus filed a motion for new trial, a petition to vacate his conviction, and several amendments to the petition. In his filings, Mr. Kraus argues, based on newly discovered e-mails from the Ottawa County prosecuting attorney’s office, that the state of Ohio failed to turn over evidence that he could have used for a selective prosecution defense. For example, Mr. Kraus asserts that a recently released e-mail shows that although the Ottawa County prosecuting attorney had purportedly recused himself from Mr. Kraus’s criminal investigation, the prosecutor communicated with Chris Redfern, who was Mr. Kraus’s 2014 election opponent, about the investigation before Mr. Kraus was indicted. In Mr. Kraus’s words, his recent filings contain “strong evidence of interference with criminal proceedings for political purposes.” Mr. Kraus also asserts that he submitted “evidence of a close social relationship” between Mr. Redfern and Judge Crawford that predates Mr. Kraus’s conviction.

While finding that the judge could be fair and impartial, there was the potential for an appearance of impropriety

Here, Mr. Kraus describes his recent filings as setting forth serious allegations of possible collusive activities for political purposes by the Ottawa County prosecuting attorney, the special prosecutor ultimately assigned to the underlying case, and Chris Redfern. Judge Crawford admits that since Mr. Kraus’s criminal trial, he has socialized with Mr. Redfern and his wife “numerous times,” that a person with whom the judge shares his boat is a “close personal friend” of Mr. Redfern, and that Mr. Redfern has been on the judge’s boat. Given Judge Crawford’s recent familiarity with Mr. Redfern and given the current allegations involving Mr. Redfern, an objective observer might question the ability of Judge Crawford to impartially decide Mr. Kraus’s pending matters. See In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (explaining that an appearance of impropriety exists “if a reasonable and objective observer would harbor serious doubts about the judge’s impartiality”). Further, considering that Mr. Kraus’s current allegations involve public officials and the integrity of the judicial process, it is best that a visiting judge with no personal connections to the parties or related individuals presides over the pending posttrial issues.

 (Mike Frisch)

March 19, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, March 18, 2018

Exoneration Not Required To Sue Defense Counsel

The Iowa Supreme Court has held that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice

This appeal presents the narrow question of whether the relief required rule (also called the exoneration rule) applies to a convicted criminal suing one of his defense attorneys for legal malpractice over an alleged missed opportunity to shorten his period of supervised probation. This rule ordinarily requires proof the client had been exonerated from the underlying conviction. The defendant attorney was retained after the malpractice plaintiff was convicted and sentenced on three counts of welfare fraud and ordered to pay restitution. The attorney successfully obtained postconviction relief vacating two convictions and over $80,000 in restitution and successfully opposed the state’s effort to have his client civilly committed as a sexually violent predator. Meanwhile, the offender, represented by separate counsel, was incarcerated for a probation violation. The district court later determined sua sponte that his term of supervised probation should have ended earlier, which would have avoided nearly a year in prison. The offender then sued one of his lawyers for malpractice.

The defendant attorney moved for summary judgment on four grounds. The district court reached only one ground and granted summary judgment based on the relief-required rule. The court of appeals reversed the summary judgment and held the client may sue over the alleged sentencing error without proving his exoneration from the conviction, so long as he obtained relief from the sentencing error. That is the position taken by the Restatement (Third) of the Law Governing Lawyers. We hold the malpractice plaintiff in this situation must prove relief from the sentencing error allegedly caused by the malpractice, not the underlying conviction. We express no opinion on the alternative grounds for summary judgment, including the scope of this defendant–attorney’s duty, if any, to monitor the duration of supervised probation. Those issues were not briefed or argued on appeal and may be decided by the district court on remand.

The court considered the approach of other jurisdictions

These cases reflect the Restatement (Third) position we adopt today. Because Kraklio does not allege Simmons negligently caused his conviction, Kraklio need not prove relief from that conviction. But the relief-required rule still applies to the alleged sentencing error. That is, Kraklio must prove he obtained relief from his period of supervised probation that he claims Simmons should have ended sooner. See Restatement (Third) of the Law Governing Lawyers § 53, at 389 (“A lawyer is liable . . . only if the lawyer’s breach of a duty of care or breach of fiduciary duty was a legal cause of injury, as determined under generally applicable principles of causation and damages.”); id. reporter’s note cmt. d, at 397–98 (collecting cases holding collateral relief from the conviction is not required when the malpractice plaintiff does not challenge the conviction); see also Johnson, 136 P.3d at 80 (“An unlawful restraint of liberty can constitute harm . . . .”); Powell v. Associated Counsel for the Accused, 129 P.3d 831, 833 (Wash. Ct. App. 2006) (“His unlawful restraint beyond th[e maximum] period [allowed by law] was not  a consequence of his own actions.”).

The district court hearing Kraklio’s revocation challenge ruled that his probation actually had ended while he was incarcerated for the probation violation. We conclude this ruling constituted sufficient relief from the alleged sentencing error to avoid summary judgment under the relief-required rule.

Note the significant  improvements  in access to case information on the Iowa Supreme Court web page. (Mike Frisch)

March 18, 2018 in Clients | Permalink | Comments (0)

Friday, March 16, 2018


An Ad Hoc District of Columbia Hearing Committee proposed a 60-day suspension with 30 days stayed of an attorney who engaged in ethical violations primarily after he had been discharged as counsel for a group of clients who were victims of a financial fraud.

Following a legal career at several major law firms, Respondent organized Capital Legal Group (US) in approximately November 2013. Respondent referred to himself as the “managing partner” of Capital Legal Group, but had no associates or partners, relying instead on as-needed contract lawyers. Stip. 1; RX 1; Tr. 200-02, 282-83 (Wallace).

In approximately March 2014, Respondent was contacted by Richard Cole, whom he had known in the 1970s while in law school. Tr. 19, 503-07. Cole alleged that he had recently been the victim of fraud perpetrated by an organization calling itself Charter Investments (“Charter”). In brief, Charter purported to offer certificates of deposit at above-market rates. When investors wired funds to Charter’s account at the East West Bank in California, the funds were withdrawn immediately, and were never invested. Cole had invested – and lost – $280,000 through this fraud. DX 21 at 24. Cole had learned of eleven individuals, and one homeowner’s association (“HOA”), similarly victimized, and sought legal representation for the group on a contingency fee basis.

The respondent agreed to represent the clients for a contingent fee.

Disciplinary Counsel contends that Respondent mishandled the transition of the Charter clients’ matter to successor counsel, failed to specify the amount or nature of his claim for fees, if any, on his former clients’ recovery, and intentionally held up the distribution of funds to former clients who had fired him and then made disciplinary complaints against him, in violation of Rules 1.3(b)(2), 1.16(d), and 8.4(d). Respondent contends that he had a valid claim for fees, that any delay in clients receiving their settlement funds was caused by successor counsel’s fee agreement and the operation of California law pertaining to attorney liens, and that he did not violate any of the Rules charged.

The committee found each charged violation.

Notably, they found that the attorney's retaliation against only the former clients who filed bar complaints prejudiced the administration of justice

Disciplinary Counsel contends that Respondent violated Rule 8.4(d) by retaliating against four clients who had reported his conduct to Disciplinary Counsel by selectively maintaining his fee claims against these clients only, by informing the clients he was about to serve an ACAB petition on them, requiring them to hire local counsel, and by asserting that he would not resolve his claims for fees against them until the disciplinary matters concluded. Respondent contends that he was entitled to resolve legitimate disputes with those clients, and that he was constrained in his ability to resolve his fee dispute because the clients had placed him in an adversarial position when they filed disciplinary complaints against him.

As set out at length above, Respondent made no good faith effort to either inform his clients of the fee he believed he was owed, or to resolve his fee claim through negotiation or the ACAB process. He seemed to believe that the clients had the obligation in the first instance to suggest what his fee should be, and that the fact that they did not do so is the principal reason no resolution was reached. That suggestion is absurd. If Respondent believed he was legitimately entitled to be paid for any work he may have done for his twelve Charter clients on the Charter matter, it stands to reason he would have asserted a fee claim against all – not just four – of the clients. His putative justification for this course of action was that the disciplinary complaints filed by the four clients at issue somehow tied his hands. However, reaching a settlement that interferes with a client’s ability to file a disciplinary complaint or requires the client to withdraw an existing complaint violates Rule 8.4(d)...

Another finding

We find Respondent’s testimony attempting to justify his selective decision to waive his fees to be untruthful, and to be contradicted by contemporaneous evidence, including Respondent’s own contemporaneous statements.

Respondent’s credibility is further undermined by the untruthful testimony he gave about the work he allegedly did for the Charter clients.

In some jurisdictions, such a finding would lead to a much harsher sanction.

An intriguing tidbit

On August 14, 2017, Respondent moved for sanctions and for an order to show cause, contending, first, that sanctions are appropriate for Disciplinary Counsel’s allegedly bad faith efforts to supplement the record with impeachment evidence. Respondent further contends that Disciplinary Counsel should be ordered to show cause why it should not be held in contempt for allegedly violating the Hearing Committee’s witness sequestration order. For the reasons discussed in the Confidential Appendix, infra, we recommend that Respondent’s motions be denied.

The probation proposed to follow the suspension has several conditions.

The case is In Re William E. Wallace and can be accessed here. (Mike Frisch)

March 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Annulled In West Virginia For Sex With Client

License annulment has been ordered by the West Virginia Supreme Court of Appeals

Benjamin F. White is a lawyer who convinced A.S. to hire him as counsel after A.S. was charged with one count of felony child neglect in April 2015. Mr. White never discussed (or documented) his fee arrangement with A.S., but immediately pursued an intimate relationship with her. Mr. White took A.S. on out-of-town trips, during which he provided her with alcohol and drugs -  causing her to violate the terms of her probation - and engaged in sexual relations with her. A.S. eventually reported Mr. White’s conduct and he was promptly removed as her counsel in June 2015. Mr. White was charged with violating six separate provisions of the West Virginia Rules of Professional Conduct, but he failed to respond to the formal statement of charges. Following a hearing at which both Mr. White and A.S. testified, the Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) recommended that Mr. White be suspended from the practice of law for five years. Upon consideration of Mr. White’s egregious conduct, including the additional aggravating factor that Mr. White disregarded this Court’s order to file a responsive brief, we order that his license be annulled.

The attorney was admitted in 2005 and met the client through a Facebook friend request.

In October 2014, Mr. White sent A.S. a Facebook friend request and began sending her messages through that social media platform. Throughout early 2015, though Mr. White and A.S. communicated online occasionally about her ongoing divorce proceeding, she testified that she did not consider him to be her attorney. The nature of their relationship changed, however, on April 22, 2015, when A.S. was charged with one felony count of gross child neglect.

He replaced her appointed counsel

After representation began, Mr. White came to A.S.’s residence unannounced on several occasions. Though A.S. acknowledges that they had a friendship beyond the usual attorney-client relationship, she testified that she felt that he was "pushy and bullish" during this time. Because Mr. White never asked for payment for his services, A.S. testified that she felt obligated to be friendly with him and that she didn’t feel like she could turn down his requests, specifically testifying that she felt that "if she quit having anything to do with him, then he wasn’t going to be [her] lawyer anymore."

At her plea hearing on May 28, 2015, A.S.’s home confinement was suspended and she was placed on probation. Immediately afterward, Mr. White insisted that they drive to Charleston to "celebrate." Once in Charleston, Mr. White took A.S. to dinner and purchased alcoholic drinks for her, despite knowing that her consumption of those drinks would violate her probation. On their way home, in the early morning hours of May 29, 2015, Mr. White took her to the ATV resort he owns and they engaged in sexual relations for the first time.

The following week, Mr. White and A.S. traveled together again when she accompanied him to Louisville, Kentucky for an ATV convention. Mr. White told her not to mention to anyone at the convention that he was her lawyer. On the way to Louisville, Mr. White gave A.S. an entire bottle of Xanax. In addition to ingesting a number of those pills, she consumed alcohol that was also provided by Mr. White and the two again engaged in sexual relations.

After the Louisville trip, Mr. White threatened to "put [A.S.] in jail" for one year for leaving her required alternative sentencing program classes early, despite her having permission to do so. On one such occasion, Mr. White came to the location where A.S. attended classes and began questioning other workers as to her whereabouts. One of the workers told Mr. White that A.S. left in a gold Suburban and Mr. White asked a friend on the police department to stop the automobile in an attempt to find her. When Mr. White and A.S. next spoke, A.S. told Mr. White that she was upset that he had involved the police because she could have been arrested. According to A.S.’s testimony, Mr. White responded, "that would have been good for [her]" and "that’s what [she] need[s]." A.S. testified that after this encounter she was paranoid that he would try to "set her up." Notwithstanding this concern, Mr. White and A.S. ultimately reconciled and were on "good terms for a week." During this time, Mr. White and A.S. again traveled to Charleston and engaged in sexual relations. Once more, Mr. White purchased alcohol for A.S. while she was still on probation...

On June 22, 2015, A.S. told A.S.’s community service manager, Ms. Maynard, about Mr. White’s behavior. Ms. Maynard accompanied A.S. to Judge Thompson’s office, where A.S. requested a new lawyer. On June 24, 2015, Mr. White was removed as counsel and Theresa McCune was appointed to represent her. A.S.’s probation was ultimately revoked due to a failed drug screen and she was sentenced to jail as a result. A.S. testified that the situation with Mr. White was very stressful and embarrassing, and had occurred at a very vulnerable time in her life. She cited her "downfall" as the prescription Xanax Mr. White had provided to her.

He failed to participate appropriately in the bar proceedings

Absent extenuating circumstances, we question whether a respondent attorney who disregards the directives of this Court and altogether fails to advocate for himself—to maintain his career—will adequately advocate for his or her clients. Accordingly, we conclude that a respondent attorney’s violation of this Court’s scheduling order will be deemed an aggravating factor and may give rise to heightened discipline.

We find that Mr. White’s egregious violations of the standards of the legal profession, combined with his outright unwillingness to comply with the directives of this Court, are sufficient to merit the most severe sanction available and hereby order that his license be annulled.

(Mike Frisch)


March 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Suspension Proposed For Chest Bump Of Opposing Counsel

A Louisiana Hearing Committee proposes a six-month suspension based on these charges

On March 19, 2015, respondent, Felix DeJean, IV, appeared in the chambers of Judge Kathy Johnson of the Seventh Judicial District Court in Cambodia Parish for a conference in the case of State of La. v. Perry Williams. Also present were the District Attorney, Bradley Burget, Assistant District Attorney Ann Siddall, and the court's clerical assistant, Julie Colclasure.

At the conclusion of the conference, the parties were leaving the judge's chambers when respondent exchanged words with the District Attorney, physically confronted him and "chest bumped" Mr. Burget twice, perpetrating a battery upon the District Attorney. To prevent further assault, Mr. Burget asserts that he grabbed respondent and restrained him until court personnel could remove him from the judge's chambers.

Respondent was later arrested and booked on charges of assault, simple battery, and threatening a public officer.

On July 14, 2016, a trial on the criminal charges of simple battery was held at the Concordia Parish Courthouse in Vidalia before Justice Chet D. Traylor, who was sitting pro tempore by appointment of the Louisiana Supreme Court. At the conclusion of testimony and closing argument of counsel, Justice Traylor found the respondent, Felix DeJean, IV, guilty as charged of simple battery of District Attorney Bradley Burget.

The conviction established the misconduct.

Respondent has been variously diagnosed with bipolar disorder, severe attention deficit hyperactivity disorder, and mood disorder, but at the hearing denied that his condition was connected to anger control problems, but rather only affected his ability to concentrate. (Tr.39- 40, 54-55, 60-63, 84-86) He specifically denied that the 2016 incident has connected with anger control issues. (Tr.p.90) Again, the Committee is concerned that Respondent is denying a root cause of his misconduct, but was not presented with sufficient medical evidence to make a finding of a diagnostic connection in this context.

An undercurrent throughout Respondent’s testimony is that others were responsible for instigating the incidents and a belief that favorable outcomes for his client confirmed the rightness of his actions. He continues to protest his innocence while also confirming that he accepts the outcomes of the disciplinary and criminal proceedings, "as an attorney", because he is forced to do so, but that the "truth" has not come out...

Considering the circumstances of Respondent’s offense and the aggravating/mitigating factors described above, the Committee recommends a six-month suspension, with no deferral, together with payment of all costs of this proceeding.

(Mike Frisch)

March 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Ex Parte Meeting Requires Remand

An ex parte meeting between a judge and prosecutor doomed a criminal conviction and requires a remand, according to the Maine Supreme Judicial Court. 

During the pendency of criminal proceedings against Eric Bard, and  while Bard’s competency to stand trial was under consideration and his motion  to dismiss all charges on the basis of alleged prosecutorial misconduct was  pending before the court, the trial court (Kennebec County, Marden, J.) held an  ex parte conference with the prosecutor to address the alleged prosecutorial  misconduct. Defense counsel was not notified of that conference and did not  consent to the ex parte communication. After further proceedings, the same  jurist found Bard competent to stand trial, denied the motion to dismiss, and  denied Bard’s motions to suppress. Bard entered a conditional guilty plea,  allowing him to challenge the competency determination and the denial of his  motions to suppress on appeal.

...We vacate all adjudicatory  action undertaken after the ex parte conference with the District Attorney by  the judge who held that conference, we dismiss the appeal from the dismissal  of the motion to vacate as moot, and we remand for further proceedings.

The alleged prosecutorial misconduct

During the course of those preliminary proceedings, Justice Marden  became concerned that District Attorney Maeghan Maloney had released  impounded information to the press and had unfairly attempted to interfere  with the availability of pretrial supervision services for Bard. Maloney was  asked to attend a hearing with defense counsel to address those concerns, but  an Assistant Attorney General appeared in her place, and the judge was not able to address the concerns at that hearing. Bard then moved to dismiss all charges on the ground that prosecutorial misconduct in the release of impounded  information had negatively affected Bard’s right to a fair trial and that the DA  had unfairly interfered with Bard’s opportunity to be released on bail.

The prohibited meeting

That conference with the DA, however, was held without notice to,  or the presence of, defense counsel. The ex parte conference was held in  chambers in order to, as the court said, “get things squared away.” A court  reporter and the court clerk were present. The conference was recorded,  although the court considered the record to be “confidential and sealed.” Bard’s counsel later learned about the ex parte conference, but, after personal assurances from the court that the conference had not included any  communications regarding the case itself, counsel did not seek the transcript of  the conference and did not, at that time, further object to the ex parte  conference.

The defendant had entered a conditional guilty plea.

Bard’s  counsel then sought and ultimately obtained the transcript, and moved in the  trial court for Justice Marden’s recusal and to vacate the judgment of conviction.  Upon Bard’s motion, Justice Marden recused himself from the proceedings. The  newly assigned trial justice (Brennan, J.) dismissed Bard’s motion to vacate the  judgment of conviction, and we now have both appeals before us.

Central Maine  reported

A Sidney man serving 50 years in prison for child rape has won an appeal from the state’s high court that will toss out his conviction and get him a new trial.

Attorney’s for Eric L. Bard, now 28, argued in December that he deserved a new trial on the basis that a judge discussed the case with the prosecutor without the defense present.

On Thursday, the Maine Supreme Judicial Court, sitting as the Law Court, agreed with that argument.

“We are persuaded that Bard was deprived of the fair process to which he was entitled,” says the opinion published Thursday on the court’s website. No specific associate justice was listed as its author.

Gina Yamartino, Bard’s attorney, who argued in front of the Law Court on Dec. 13, 2017, said Bard, who is being held at the Maine Correctional Center in Windam, knows about the Law Court’s decision, and that she plans to meet with him Friday. She also said she is likely to seek bail for Bard.

The Law Court’s decision dealt largely with the June 23, 2014, conversation between Marden and District Attorney Maeghan Maloney, whose office prosecuted the case.

Maloney could not be reached immediately for comment Thursday.

Transcripts of the meeting show the conversation centered on the release of an affidavit that had been impounded and calls by Maloney to agencies considering supervising Bard while he was free on bail. The judge had issued a gag order in the case a week or so earlier that prohibited attorneys, court personnel, potential witnesses and law enforcement officers from commenting on Bard’s case.

“Had the conversation at issue here occurred in the presence of defense counsel, with an opportunity for counsel to be heard on any of the factual or legal positions presented by the DA, the asserted claim of a due process violation would hold little merit,” the Law Court’s opinion says.

“Every defendant has the right to an impartial judge at his trial,” said Yamartino, in a prepared statement that she read over the phone. “The court was persuaded that our client was deprived of the fair process to which he was entitled. … The court based their decision on our client’s due process rights and the importance of public trust and confidence in the procedures used by the courts.”

 The prosecutor in the case, Assistant Attorney General Paul Rucha, who initially screened the case when he was part of the Kennebec County District Attorney’s Office, had asked the Law Court to keep Bard’s conviction intact.

On Thursday, Rucha said, “We’re reviewing the decision, but we believe the court’s previous order prohibiting comment by us is in effect.” He declined to say anything else.

Bard’s trial in August 2014 in Kennebec County Superior Court was cut short when he entered conditional guilty pleas to 11 charges of sexual exploitation of a minor, seven charges of gross sexual assault on a child under 12, two charges of unlawful sexual contact and one charge of assault. Those pleas were conditional on the issues being appealed to the Law Court.

The trial judge, Superior Court Justice Donald Marden, explained at the time that if the rulings by the Law Court indicated he was wrong in pre-trial decisions, Bard could withdraw his guilty pleas.

The offenses occurred in the period of Dec. 1, 2011, to April 30, 2012, while Bard was baby-sitting the 4-year-old girl in Augusta. Investigators say he had befriended the child’s mother in 2010.

The investigation began when another mother seeking day care services for her child in May 2012 came across an ad on Craigslist offering to babysit, photograph and bathe children. She reported it to Maine State Police, who learned that Bard had placed the ad.

It quotes from a court reporter’s transcript of that conversation and says, “Here, a due process infirmity arose when the court held an ex parte conference, without Bard’s knowledge or consent, on a subject directly related to the viability of the charges against Bard and the process for adjudication of those charges.”

The opinion also includes a footnote regarding Marden, the trial judge: “In the matter before us, the trial court must be credited for taking precautions by having the conference recorded and stating at the outset that its purpose was only to alert the prosecutor about her office’s possible ethical violation in contravention of the court’s impoundment order or bail order.”

The Law Court also indicated that the matter should be specially assigned to one judge and dealt with expeditiously “given that this matter has now been pending for more than five years, that the alleged victim is young, and that Bard has been incarcerated for several years.”

Rulings in the case have been appealed several times, and Bard has had a number of hearings to determine whether he was competent to enter a plea and stand trial.

(Mike Frisch)

March 16, 2018 | Permalink | Comments (0)

Thursday, March 15, 2018

"Joke" In British Columbia Draws A New York Censure

The New York Appellate Division for the Third Judicial Department has publicly censured an attorney as reciprocal discipline for a short suspension in British Columbia.

In June 2014, the Hearing Panel on Disciplinary Action in British Columbia determined that respondent committed professional misconduct based upon statements made to a social worker (hereinafter A.M.) while at a courthouse. In January 2014, the Hearing Panel suspended respondent for two weeks and issued a fine based upon his misconduct.  Accordingly, the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves this Court to impose discipline upon respondent...

Respondent opposes AGC's motion, contending, in part, that the misconduct for which he was disciplined in British Columbia does not constitute misconduct in this state. AGC has replied to respondent's opposition.

Yes it is

Respondent's discipline in British Columbia stems from inappropriate comments made to A.M. in a crowded courthouse. Specifically, respondent approached A.M. and remarked that he "should shoot" her because she "takes away too many kids." Throughout the proceedings in British Columbia, respondent contended that his comments were a "joke gone bad" and that he had no intent to threaten A.M. However, similar to the determination of the Hearing Panel, we find that the context in which respondent's statements were made is particularly relevant in determining that his conduct violates our Rules of Professional Conduct (22 NYCRR 1200.0). Respondent's statements were uttered to a social worker for the Ministry of Children and Family Development, an entity that regularly was an adversary based upon the nature of respondent's work, in a crowded courthouse in front of colleagues and parents, the latter of whom are frequently in a contentious and emotional state. What respondent fails to recognize is that his statements could be construed as a threat – even if not intended as such. Indeed, A.M. testified that she perceived his statements as a threat. Accordingly, while respondent may have intended his words as a joke, we find that his words served no substantial purpose other than to harm or embarrass A.M.

(Mike Frisch)

March 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Liar, Liar: Beyond Redemption

An extensive history of bar discipline has led to the ultimate sanction - disbarment by the New Jersey Supreme Court.

The tale is told by the Disciplinary Review Board

Respondent’s misconduct in these matters replicates and combines multiple facets of his extensive disciplinary history. He has a well-established pattern of being untruthful to courts; lying to disciplinary authorities, including while under oath; failing to obey court orders; and failing to comply with recordkeeping obligations imposed on New Jersey attorneys.

Respondent’s inaugural brush with the disciplinary system, in 1999, evidences his unabashed willingness to lie to courts. There, he was suspended for three months for twice lying to a municipal court judge regarding his failure to appear. That judge recounted that respondent "had a history of either failing to appear on matters before her or of being late in those instances when he did appear." We reasoned that enhanced discipline was necessary because "respondent was brazen enough to lie to the same judge who had recently given him a very stern warning that his misconduct would not be tolerated. Respondent’s misconduct was not a single, isolated event. Rather, his lies were almost seamless in their transition." More than fifteen years later, rather than learning from his mistakes, respondent continues to engage in the same deceitful behavior toward courts.

Respondent is well aware of the recordkeeping requirements imposed on New Jersey attorneys, yet continues to disregard them. In 2001, he was admonished for failing to use a trust account in connection with his practice and failing to maintain required receipts and disbursements journals or client ledger cards. Again, fifteen years later, respondent still refuses to comply with the most basic recordkeeping obligations imposed on New Jersey attorneys.


Given the contemptible set of facts present in these combined matters, we must consider the ultimate question of whether the protection of the public requires respondent’s disbarment. When the totality of respondent’s behavior in all matters, past and present, is examined, we find ample proof that he is unsalvageable, and that no amount of redemption, counseling, or education will overcome his penchant for disregarding ethics rules. As the Court held in another matter, "[n]othing in the record inspires confidence that if respondent were to return to practice [from his current suspension] that his conduct would improve. Given his lengthy disciplinary history and the absence of any hope for improvement, we expect that his assault on the Rules of Professional Conduct would continue." In re Vincenti, 152 N.J. 253, 254 (1998). Similarly, we determine that, based on his extensive record of misconduct and demonstrable refusal to learn from his mistakes, there is no evidence that respondent can return to practice and improve his conduct. Accordingly, we recommend respondent’s disbarment.

(Mike Frisch)

March 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Six Days, Seven Nights

The Indiana Supreme Court has suspended a circuit court judge for six days without pay.

We find that Respondent, the Honorable Dean A. Young, Judge of the Blackford Circuit Court, engaged in judicial misconduct relating to a temporary restraining order that he heard and issued without adequate notice to the responding party or witnesses, and while he had a specific interest in the subject matter. The Special Masters recommended, and the parties agree, that the appropriate discipline is to suspend Judge Young for six days without pay.

The story

This case arose in 2015 from a disagreeable relationship between Derinda Shady, who was the elected Blackford County Clerk, and the County’s two judges: Circuit Court Judge Young and Superior Court Judge John Barry. The tension culminated in the two Judges holding a restraining-order hearing at which Shady was not present, then issuing a restraining order barring her from the courthouse until the order was vacated six days later.

Shady sought help for funding cuts to her office and the judges declined

Those decisions angered Shady—she told Judge Young, “You can collect your own court costs, too,” and she told Judge Barry that he’d “better bring a cop” if he came to retrieve the files. She apologized a few days later and let the files be transferred without incident. But she also continued referring to the Judges by obscene names in front of office staff and the public. (The Judges knew secondhand of her insolence but took no action.)

After the City Council did not assist

The Council rejected Shady’s staffing appeal, and Shady was rude to Council members afterward—but she made no specific threat not to do her job or to destroy court records. Judge Barry received reports about Shady’s rude behavior and told Judge Young about them, but Judge Young did not see Shady’s behavior firsthand.

The next day

The next morning, August 20, Judge Young arrived at the courthouse at about 7:30 and began making phone calls, including to one of the Council members, asking about Shady’s behavior the previous evening. He then met with Judge Barry and suggested that they “would have a hearing and ‘lock [Shady] out of her office’” if her behavior did not change.

By 8:00 that morning, Judge Young went to the Clerk’s Office to demand that Shady come upstairs to meet with him and Judge Barry. Shady was on the phone at the time, but after her call, she phoned Judge Young and told him “if he had something to say that he could come down to her office.” Judge Young replied, “Get up here! Now!” Shady came upstairs and brought her daughter, Deputy Clerk Patricia Milholland. But Judge Young was unwilling to have Milholland present. At a stalemate, Shady and Milholland went back downstairs after a few minutes, and no meeting happened that day.

Shady went to a hospital that day after a "panic attack"

Beginning at 8:25 a.m., Judges Young and Barry sua sponte began a hearing to enjoin Shady from the Courthouse. There was no written application, affidavit, or verified complaint. Shady had no written notice of the date and time of the hearing or its subject, nor did the Deputy Clerks who were present have prior written notice of the allegations against them before Judge Young questioned them.

At the hearing, with no personal knowledge of the reasons for Shady’s absence, Judge Young stated that she had “stormed out” and “fled the courthouse grounds.” He also stated that the Sheriff was “unable to secure her attendance,” even though there had been no further efforts in that regard—and even though Shady’s daughter Milholland was present. Judge Young also made comments evincing bias against Shady—including that she was “totally poisoning this workplace” and that if she’d made her “bring a cop” comment to him instead of Judge Barry, “she would be here in hunter orange this morning, in chains, where she would stay and enjoy her Thanksgiving dinner, probably her Christmas dinner as well.”

Judge Young then declared an “emergency” that “the Clerk is unfit to assume her duties,” and that she would be “locked out of the entire courthouse square.” He further announced that Shady “will be arrested” if she appeared at the courthouse before the next hearing, which he set for August 26, six days later—even though there had been no evidence or allegations that Shady had threatened to sabotage the Court’s files...

By 1:30 the same afternoon, Judges Young and Barry issued a temporary restraining order (“the TRO”) of Judge Young’s drafting, barring Shady from the courthouse grounds until a hearing set for August 26 at 11:00 a.m. The TRO stated in part that “evidence indicates that [Shady] will refuse to obey the lawful commands of the Courts regarding Court business” and “refuse or sabotage” the Superior Court’s business. Even though Judge Young was the requestor of the TRO, he presided over the hearing and did not disqualify or request appointment of a special judge.

On the morning of August 25, Shady’s attorney called Judges Young and Barry on the phone, seeking a continuance of the next day’s hearing and pointing out “that the case was in an odd posture because the judges were both parties and presiding over the case.” At that point, the Judges sought advice from counsel for the Commission, who recommended that the judges “deescalate the situation and work towards a settlement.” By that afternoon, the TRO was dissolved.

The court on de novo review agreed with the Special Masters findings on misconduct and sanction.

The Chicago Tribune reported on the proceedings below.  The charges were reported by The Indiana Lawyer. (Mike Frisch)

March 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 14, 2018

Reprimand For Asking To See Client's Breasts

Busy discipline day for the South Carolina Supreme Court with this reprimand

One matter involved a drafting error in a child support order and his delay in correcting that mistake.

The other

Respondent was retained to represent Client B in a divorce and custody action after Client B, while being represented by another attorney, lost custody of her child at a temporary hearing. Client B's spouse died before the final hearing could be held. Subsequently, the family court awarded temporary custody of Client B's child to the sister of Client B's spouse (Aunt) and the sister's husband (Uncle). Shortly after the temporary hearing in which custody was awarded to Aunt and Uncle, Client B released respondent and retained a new attorney.

At some point during his representation of Client B, respondent expressed to Client B that he was interested in a sexual relationship with her. Respondent asked Client B to show him her breasts. Client B showed respondent her breasts, but felt ashamed and humiliated. Respondent and Client B did not engage in a sexual relationship.

He admitted both counts. (Mike Frisch)

March 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thank You For E-Smoking

A public reprimand by the South Carolina Supreme Court of an attorney

Respondent represented Client in a criminal matter. Concerned that Client was suffering from a medical emergency and that the medical treatment Client was receiving in jail was inadequate, respondent paid Client's bond. When Client ran  out of money to pay for the motel room where she was living, and was at risk of having to live on the street, respondent, with his wife's permission, allowed Client to stay at respondent's house with respondent and his wife for two to three nights. Respondent's wife provided Client with clothing. Respondent provided assistance to Client, including monetary assistance, in obtaining a driver's license, car insurance, and a new cell phone. Respondent also aided Client in signing up for inpatient drug rehabilitation. Respondent briefly employed Client in his law office. Respondent represents that he had negotiated a tentative plea agreement with the solicitor and believed the matter would be concluded based on that agreement at the time he began providing financial assistance to Client.

All of the funds advanced to Client came from respondent's operating account or personal funds, and respondent expected to be repaid from Client's anticipated tax refund. Client gave respondent a power of attorney so that respondent could receive the tax refund and secure repayment of the funds advanced. Respondent maintains the funds provided to Client did not encourage Client to pursue any litigation and did not provide respondent with a financial stake in any litigation.

But all was not beneficent

On several occasions, respondent made sexually inappropriate comments to Client on the telephone while she was in jail, and on one occasion did the same with another client who was in jail. There is no evidence, nor have the clients claimed, respondent had sexual relations or engaged in any other inappropriate or unwarranted touching with either client, including with Client while she was staying in his home. There is also no evidence respondent requested sexual services in exchange for anything.

Respondent asserts he believed at the time the comments were made that they "were merely 'raunchy' banter or jokes between jailed clients with a difficult past and their attorney" and that they were part of private conversations that he never imagined would become public. Respondent now acknowledges the inappropriate nature of the comments. Indeed, our review of the portions of the telephone conversations at issue revealed respondent's comments to be sexually explicit and highly offensive in nature. We find such comments made to a client by a member of the legal profession are entirely inappropriate and they will not be tolerated.


On one occasion, respondent delivered electronic cigarettes to two clients in jail.  He deliberately concealed the transfer by positioning his body in order to block the surveillance camera. A second delivery to one of the clients was foiled when an officer monitoring the surveillance camera in the visitation room witnessed respondent physically embracing the client and subsequently confiscated the electronic cigarette from the client. Electronic cigarettes were sold at the jail's commissary, and, under South Carolina law, are not considered contraband or a form of tobacco products, which are banned at the jail...

However, as an attorney, respondent was afforded special privileges by the jail facility and his delivery of the electronic cigarettes to his clients violated the trust the jail had in him as a member of the Bar.

(Mike Frisch)

March 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Suspended In South Carolina

The South Carolina Supreme Court imposed a six-month suspension for misconduct in two matters.

One involved stiffing a court reporter

On approximately seven occasions during February 2005 and October 2007, respondent and his previous law partner retained the services of a court reporter for appearances and depositions. Transcripts of the depositions were ordered by respondent and his law partner and delivered to their law offices, along with an invoice for each transcript. The total amount of the outstanding invoices was approximately $4,040.69. When the invoices remained unpaid, the court reporter filed an action in magistrate's court and obtained a default judgment against respondent and his law partner for the amount of the unpaid invoices plus court costs, for a total of $4,120.69. Respondent failed to pay his portion of the unpaid invoices — $3,279.11. Respondent represents he was initially unaware of the outstanding invoices or of the court reporter's lawsuit and judgment. However, respondent was put on notice of the allegations by ODC on or about March 29, 2012, and he has still failed to pay the outstanding invoices.

The other involved an assignment and authorization

After trial, respondent attempted to negotiate the amount of the neurologist's bill. After closely scrutinizing the neurologist's charges, respondent believed some of the charges had been inflated and some charges were fraudulent. The neurologist eventually filed a lawsuit against respondent and Client B to recover the full  amount of his bill. The jury awarded the neurologist $9,054.81.

Respondent failed to disclose to the trial judge in the personal injury action that he had offered material evidence and testimony at trial — in the form of the neurologist's bill and testimony — that he later learned was partially false. In addition, by the time the neurologist's action against respondent and Client B was resolved, respondent had distributed all remaining settlement funds to Client B. Respondent failed to hold the disputed $71,000 in trust pending resolution of the dispute.

(Mike Frisch)

March 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)